Power and National Disability Insurance Agency
[2023] AATA 3357
•18 October 2023
Power and National Disability Insurance Agency [2023] AATA 3357 (18 October 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/3612
Re:Glenn Power
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Hon Pru Goward AO, Senior Member
Date:18 October 2023
Place:Sydney
The Tribunal affirms the decision under review made by the delegate dated 17 June 2019, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...........................[SGD].........................................
The Honourable Pru Goward AO, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria - substantially reduced functional capacity – early intervention requirements - disability requirements - functional capacity - mobility - self-care - social interaction – whether the Applicant is likely to require lifetime support under the National Disability Insurance Scheme – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
National Disability Insurance Scheme Act 2013 (Cth) ss 21, 24, 25, 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)CASES
Holmes and National Disability Insurance Agency [2017] AATA 2750
Madelaine and National Disability Insurance Agency [2020] AATA 4025
MHZQ and National Disability Insurance Agency [2019] AATA 810
National Disability Insurance Agency v Foster [2023] FCAFC 11
Nika and National Disability Insurance Agency [2021] AATA 2127
Puster and National Disability Insurance Agency [2023] AATA 1760
Rooney and National Disability Insurance Agency [2021] AATA 3523SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page)< FOR DECISION
The Honourable Pru Goward AO, Senior Member
18 October 2023
INTRODUCTION
The Applicant, Mr Glenn Power, is a 67 year old man who sustained a back injury in 2003 while at work. He has been unemployed since that injury occurred. His wife provided most of his support until she died unexpectedly in 2016. Since 2003, the Applicant has undergone several spinal surgeries and now lives with severe and chronic back pain. He has also been diagnosed with Persistent Depressive Disorder (PDD) and Major Depressive Disorder (MDD).
The Applicant claims these conditions are impairments which have substantially reduced his mobility, his self-care and social interaction.
The Applicant was granted a Disability Support Pension in 2017 and sought access to the National Disability Insurance Scheme (‘the Scheme’) on 22 December 2017.
This matter involves a review of an internal decision (‘IRD') of the National Disability Insurance Agency (‘the Respondent’) made on 17 June 2019, which confirmed an earlier decision, made on 21 March 2018, that the Applicant did not meet the access criteria to become a participant in the Scheme.
In particular, the IRD found that the Applicant did not meet the disability requirements contained in s 24, or s 25 of the National Disability insurance Scheme Act 2013 (‘the NDISAct’). Particularly, the Applicant did not satisfy s 24 (1) (b) (the impairment is, or is likely to be permanent); s 24 (1) (c) (substantially reduced functional capacity); s 24 (1) (e) (the Applicant must be likely to require support under the NDIS for his lifetime and further, did not satisfy s 25 (3) (early intervention supports more appropriately funded through the mainstream health services).
On 20 June 2019, the Applicant sought review of this decision by the Administrative Appeals Tribunal, (‘the Tribunal’), under s 103 of the NDIS Act.
RELEVANT LEGISLATION
The access criteria
The NDIS Act sets out the requirements for access to the Scheme in ss 21, 22, 23 and 24.
For completion, in s 21 (1), these are that:
(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 ISSUES
The reviewable decision of 17 June 2019 refused the Applicant access to the scheme because he did not meet the following access criteria in respect of his impairments:
(a)permanence (s 24 (1) (b)
(b)reduced functional capacity (s 24 (1) (c)
(c)requirement of NDIS support for his lifetime (s 24 (2) (e)
(d)early intervention requirements (s 25 (1) (a) – (c)
While these same issues were initially before the Tribunal, at the outset of the hearing, the Respondent advised that the Applicant’s impairments of pain and depression were accepted as permanent (other conditions referenced by the Applicant had fallen away).
In determining whether the Applicant’s impairments result in substantially reduced functionality, the parties relied upon the NDIS (Becoming a Participant) Rules 2016, 5.8, which requires determination of whether:
(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.
Early intervention requirements
Regarding s 25, early intervention, the Applicant contended in his SOFIC (paragraphs 42 and 43):
there is a need to take a common-sense approach when considering whether support now would likely reduce a person’s future needs for supports in relation to disability, and whether support now is likely to benefit the person by mitigating the impact of the person’s impairment upon the functional domain(s) in which they struggle or preventing the deterioration of their functional capacity.
If I could access NDIS supports now, via the early intervention pathway, common sense would suggest that my risk of falls, overexertion and further deconditioning will be lowered. Therefore, having the supports in my life would keep me as independent as possible for longer. Such a scenario represents a reduction in my future needs for supports in relation to disability, because the need for further supports (to address functional loss following a fall, or functional loss following overexertion or further deconditioning) would be postponed until later in my life.
In his closing submissions, the Applicant also contended that the provision of “everyday living supports now” would reduce his “future needs for supports in relation to disability” and therefore meet the requirements of s 25. However, evidence to support these contentions was not pursued in the hearing by either party and accordingly, the requirements of s 25 are not considered in this decision.
The parties also considered the temporal element, that is, Mr Power’s age, and whether further declines in his capacity after the age of 65, when he would no longer be eligible for participation in the NDIS, contributed to any finding of functional impairment. During the hearing, the Respondent advised that the temporal element was no longer a consideration and consequently, it does not form part of this decision.
Disability requirements
With respect to whether the Applicant meets the disability requirements, the parties are agreed that the requirements of s 21 (1) (a and b), that is, the age and residency requirements, are met, and the requirements of s 24 (1) (a), (b) and (d) are met. Accordingly, this decision is solely concerned with whether the requirements of s 24 (1) (c) and (e) are met. For completion, these are:
(1) A person meets the disability requirements if:
(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.
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
Regarding s 24 (1) (c), the parties agreed, and it is accepted by the Tribunal, that the Applicant is not impaired with learning, communication and self-management. However, the Applicant’s degree of impairment with the activities of social interaction, mobility and self care are in dispute and the matter will be determined by considering s 24 (1) (c) (ii; iv and v) of the Act, which relate to those activities.
Whilst the parties agreed that the Applicant suffered from impairments, the issue was whether they were substantial, as required by the NDIS Act. Particularly, whether the Applicant’s limitations in particular tasks constituted substantial impairment across an entire domain of activity in any of self-care, mobility and social interaction, and whether the aids relied upon by the Applicant were in the nature of assistive technology or everyday aids, so meeting the requirements of R 5.8 of the NDIS (Becoming a Participant) Rules 2013.
Regarding s 24 (1) (e), the issue is whether the Applicant is likely to require support under the NDIS for the rest of his life or whether comparable supports are available in other systems. The Tribunal sought additional written submissions on the application of s 24 (1) (e) to this case, which are considered later in the decision.
If the degree of impairment is substantial in any of these three domains of activity, then the Tribunal, for completion, will still consider whether the requirements of s 24 (1) (e) are met, drawing on the further written submissions sought by the Tribunal.
If the requirements of s 24 (1) (c) are not met, then the Tribunal need not determine whether the requirements of s 24 (1) (e) are met.
EVIDENCE
The Tribunal has had regard to various material before it, including:
·Applicant’s bundle of evidence filed 19 February 2019
·Report of Mr Geoff Bowser dated 2 October 2019
·Updated Report of Professor Ghabrial dated 23 October 2019
·Additional Report of Mr Geoff Bowser dated 23 September 2021
·Applicant’s second bundle of documents filed 28 January 2021
·Applicant’s tender bundle of evidence filed 8 September 2022
·Applicant’s Statement of Lived Experience dated 21 December 2022
·Questions from Applicant’s representative to Dr Ben Seckold dated 6 March 2023
·Respondent’s bundle of documents filed 28 August 2020
·Report of Dr Volschenk dated 16 March 2022
·Report of Ms Tania Vander Noord dated 29 April 2022
·Supplementary report of Ms Vander Noord dated 31 January 2023 (including Letter of Instruction dated 11 January 2023)
·Respondents Statement of Facts, Issues and Contentions dated 17 July 2023
·Section 37 T-Documents filed 15 July 2020
·Applicant’s Statement of Facts, Issues and Contentions dated 14 August 2023
·Applicant’s post hearing submissions (regarding section 24(1)(e) of NDIS Act) dated 28 August 2023
·Respondent’s post hearing submissions regarding section 24(1) (e) of the NDIS Act (dated 19 August 2023) and supporting material
Oral evidence
The Tribunal heard oral evidence from the Applicant, Mr Geoff Bowser, Ms Tania Vander Noord and Dr Ben Seckold.
BACKGROUND
Although the Applicant suffered his injury in 2003, he did not seek to become a participant in the Scheme until 2017, (by then aged 61) but significantly younger than 65, the maximum age for admission to the Scheme. The Tribunal understands from the evidence that he was not considered sufficiently disabled under NSW Workers Compensation legislation to receive ongoing support from that scheme. He was declined for admission to the Scheme for the reasons already given, including that the Respondent was not satisfied that he was substantially impaired in any of the designated functions, and there were no early intervention supports more appropriately funded through mainstream health services.
Since the Applicant’s request to become a participant in the Scheme was rejected, the Applicant has received further surgical interventions designed to relieve his pain, with some benefit, but continues to rely on significant amounts of medication to control his pain and depressive disorders.
The Applicant uses some basic aids, such as a shower chair, to assist with his self-care. He uses a walking stick to travel short distances and does not use a walker.
The Applicant lives in his own home, currently, despite his age and disabilities, without formal supports. He does not drive but sees his GP regularly and is medication compliant. He had relied upon his wife to provide most of his support, such as housework, until her unexpected death in 2016. His chronic pain, and acute pain with some movements, makes it difficult for him to do more than basic housework. The Applicant told the Tribunal he only cooks a couple of days each week, because of the impact standing has on his pain levels. Furthermore, he cannot change his bed-linen or spring clean his home and also lacks motivation to do so, consistent with both pain and depression. He has a friend who helps him do his major shopping, but walks, with a walking stick and with difficulty, to the nearby shop for regular items.
On the advice of his psychologist, Mr Bowser, who was concerned by the Applicant’s suicidality, he walks to a nearby hotel twice weekly where he meets up with long-standing friends for a meal and conversation while they watch sport.
During cross examination before the Tribunal, the Applicant confirmed he spoke to his granddaughter regularly on the telephone and went out with her and her family on an approximate monthly basis. He occasionally speaks to other friends and his neighbours on the telephone or in person, but otherwise is not sociable. The Applicant’s treating psychologist treats his depression.
Mr Power presented as a robust personality who has clearly been disappointed by his inability to work and his current circumstances. During the hearing, I found he was able to engage and communicate effectively with myself and the Respondent.
CONTENTIONS
The Respondent contended that although the Applicant suffers some impairment in mobility, self-care and social interaction, he is not substantially impaired in any of them. The Respondent relied upon the cases of National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) and Nika and National Disability Insurance Agency [2021] AATA 2127 (‘Nika’) to contend that even if the Applicant were substantially impaired in one task, substantial impairment of function in one domain (or activity) required the overall level of impairment be reduced. Foster refers to a “bundle of tasks…” and Nika, more pointedly, says the “test is whether the impairment is substantial as a whole… not in individual activities”.
The Applicant contended he was substantially impaired in a broad range of tasks and therefore his functional impairment in each of the three domains was substantial.
The Respondent further contended that although the Applicant used disability aids, such as a walking stick and the assistance of a friend to take him shopping, that under r 5.8 of the NDIS (Supports for Participants) Rules 2013 (Cth), (1) these aids were everyday items and not specialty “equipment (other than commonly used items such as glasses)” and that (2) performing tasks slowly or differently did not necessarily constitute impairment. Additional reliance was placed upon the cases of Rooney and National Disability Insurance Agency [2021] AATA 3523, Foster and Madelaine to support these contentions.
The Applicant contended that the aids he used, and those he considered he required but had not been so advised by the occupational therapist (‘OT’), such as a disability walker, constituted assistive technology and therefore met the requirements of R 5.8, particularly that:
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) and, further, there were some tasks, such as stripping his bed and spring cleaning, which he was unable to do in any circumstances.
The Applicant also contended that his inability to spring clean or change his bedding without assistance meant the requirements of R 5.8 (b) had been met. He further contended that his chronic pain and its associated depressive disorders had severely reduced his capacity for more every-day grooming tasks, such as showering daily, changing his bedding or washing his clothes, and consequently, they were performed so infrequently his GP advised the Tribunal they may have compromised his hygiene. Similarly, he contended that his mobility was substantially impaired by his pain and that his social interaction, impaired by both his pain and consequent depression, was also substantial and therefore met the requirements of s 24 1 (c).
The Respondent relied upon Madelaine and National Disability Insurance Agency [2020] AATA 4025 (‘Madelaine’) (among other cases) to contend that the Guidelines’ requirements to achieve functional capacity in relation to mobility are “relatively modest”, including moving around the community to undertake the ordinary activities of daily living. Conversely, the Applicant considered his ability to move around the community was substantially impaired.
Mobility (s 24 (1) (c) (iv)
The Applicant said he could walk with a stick, slowly and with several rest stops, to do minor shopping at the nearby convenience store. He told the Tribunal that for his major weekly shop, involving a visit to ALDI supermarket, he relied upon a friend to collect him and drive him there, since he could not manage public transport. He appears not to have considered a taxi service and told the Tribunal he had not sought NSW government taxi subsidies available to pensioners.
The Respondent accepted the Applicant’s description of his difficulty with walking, requiring him to walk slowly, using a walking stick, with many rest stops, and his inability to get out of bed the following day if he over-exerted himself. This was also corroborated by the evidence of witnesses clinical psychologist Geoff Bowser, OT Tania Vander Noord and general practitioner Dr Ben Seckold and accordingly, accepted by the Tribunal. However, the Respondent considered there was insufficient evidence of substantial impairment of mobility. Referring to the Guidelines, which explain that substantial impairment of mobility meant:
how easily you move around your home and community
The Respondent relied upon Madelaine to interpret that phrase as implying:
some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living.
Determining the appropriate minimum walking distance has been the task in several matters before the Tribunal and the Courts over the years. Again, the Respondent relied upon Madelaine, amongst others, which noted the following with respect to the relevant minimum distance:
No particular distance is specified in the Guideline as defining this level of mobility… it seems reasonable to suggest that a person who can travel 50 m … has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ. A distance of fifty metres is accepted by the Tribunal as the minimum requirement for functional mobility.
The Respondent had organised and funded an independent OT report to assess the Applicant’s functionality. The OT report included reference to the Applicant’s mobility, noting he had escorted her to her car, a distance of at least fifty metres, and that he could also walk to the local hotel for a meal, again, a distance greater than fifty metres. The walking distance to the local shop also involved a trip of greater than fifty metres.
The OT did not advise the use of a four-wheeled walker. The Applicant challenged her on her failure to recommend an aid he believed he should use to improve his mobility and safety.
In cross examination during the hearing, the OT, Ms Vander Noord, advised that she was not qualified to assess the Applicant’s mobility but that she would recommend a physiotherapy assessment:
As an OT, I don’t recommend mobility aids. That’s-that’s not in the scope of my profession, so I don’t do that…
it would be considered clinically irresponsible to prescribe a piece of equipment for mobility purposes without having trialled the equipment with Mr Power or observed him using it. Or anybody else for that matter. So, I would never write in a report from a functional assessment that I would recommend a piece of mobility equipment. I would always defer a piece of mobility equipment in terms of a recommendation, whether it was a walker, a walking stick, a quad stick, a pick-up frame, any piece of equipment I would refer it for a – I would reference in a report a referral to a clinician. So, such as an OT or a physio, depending on the piece of equipment for further assessment and recommendation.
The Tribunal notes the OT did not recommend a physiotherapy assessment until the hearing and in cross examination by the Applicant. The Applicant, in closing submissions, referenced the OT’s recommendations for appropriate supports several times but rejected her assessments where these were not consistent with those of his psychologist, Mr Geoff Bowser, and his GP, Dr Ben Seckold.
I submit that the OT’s observations and recommendations should be read through all ends with an understanding that reports do not, cannot capture the full extent of my difficulties, because they are snapshots only, not assessments across a period of time, with the impact of factors such as pain, fatigue and endurance can be sufficiently observed by the likes of, say, Dr Ben Seckold and Mr Bowser. They’ve seen me a lot longer and a lot more than what the OT has.
However, the Respondent contended that where there was a difference between the assessments of the Applicant’s GP and psychologist and those of the OT, Ms Vander Noord, that Ms Vander Noord’s is to be preferred because an OT is specifically trained in assessment of functional capacity. The Respondent replied upon Puster and National Disability Insurance Agency [2023] AATA 1760:
where the Tribunal made that very point, that it was assessing functional capacity. It had evidence from an OT, evidence from the GP and evidence from a psychiatrist. And the tribunal made the point that really the person with the greatest expertise in that functional assessment is the OT, and greater weight should be placed on that assessment, rather than the GP or the psychiatrist.
The Tribunal, while accepting the greater expertise of the Ms Vander Noord, also finds the observations of the GP and psychologist useful and accordingly has found them relevant to assessing the Applicant’s functionality. In this case, the Tribunal also accepts Ms Vander Noord’s explanation for not assessing the Applicant’s mobility needs. While agreeing with the Applicant that the OT Assessment could have included any number of additional elements, the Tribunal accepts that the OT followed professional practice in making the assessments that she did.
Although the Applicant says he is always in pain, he can walk to his local hotel, a local shop and, if driven to a larger shopping centre, can walk around the supermarket and to the doctor’s surgery. As referenced in MRLK and National Disability Insurance Agency [2021] AATA 3896 (‘MRLK’) and Madelaine, the threshold requirements for mobility are “relatively modest” and do not require him, for example, to be able to walk to the furthest shopping centre in order to mobilise in the community, but to be able to mobilise while he was at the shopping centre. There was undisputed evidence that the Applicant can walk up and down the stairs in his house, although with difficulty and some concern about falling. Furthermore, that to travel further than a few hundred metres would see him confined to bed the following day to recover. No evidence about the frequency of this over-exertion was provided.
While a physiotherapist’s mobility assessment may have assisted the Tribunal in determining the Applicant’s mobility needs, the Tribunal finds, on the evidence provided, that the Applicant, although impaired in mobility, is not substantially impaired. The Tribunal relies upon Madelaine, Holmes and National Disability Insurance Agency [2017] AATA 2750 and MHZQ and National Disability Insurance Agency [2019] AATA 810. It is not disputed that the Applicant can walk at least fifty metres, the minimal distance identified and, in his case, using only a walking stick. Despite his severe pain, he is still motivated and able to walk, albeit, as the Respondent contended, slowly and differently. However, as the Respondent asserted and the Tribunal accepts, the Guidelines specify that doing something more slowly or differently does not mean he is unable to do so.
The Tribunal appreciates that the Applicant considered he required a four-wheel walker to assist him and that this requirement demonstrated substantial impairment in mobility (and self-care). There is insufficient evidence that the Applicant required a four-wheeled walker and the Tribunal notes, as observed by the Respondent, that a four-wheel walker is a commonly available item and could have been purchased by the Applicant without referral from a physiotherapist and obtained either commercially or through a state subsidy scheme. The Tribunal addresses the definition of commonly used items more comprehensively later in this decision.
Self-care s 24(1) (c)
Although acknowledging that the Applicant could not perform certain activities related to self-care, for example changing the linen on his bed, the Respondent considered that the Applicant’s overall ability to care for himself was not substantially reduced.
The Applicant pointed to many activities he either could no longer do without assistance, or slowly and with difficulty. I will consider the Applicant’s use of assistance later in the decision.
The Applicant contended in his SOFIC that the combination of his mobility problems caused by his chronic pain led him to carry out only limited house-keeping tasks and personal grooming. He told the Tribunal:
I can’t shower until the afternoon. Dressing and undressing and showering very difficult for me. I’m unsteady and it’s painful and I usually only have one to two showers per week because I do not feel capable of performing the task more than this.
He described his difficulties in housekeeping, cooking, bed making and cleaning, relying on the first report of the OT, Ms Vander Noord:
My home was observed to be dirty with a build-up of crumbs, fluff, dust and hair evidence throughout the house, The tiled floors appeared dirty, and the toilets and bathroom needed scrubbing. I had marked reduced capacity for standing and walking, reduced capacity to reach below knee level, reduced capacity for lifting and carrying, inability to do tasks involving pushing/pulling, ‘difficulty’ changing linen on the bed. I need modification (toilet grab rail) and equipment (shower stool) to perform activities of personal care
… I need modifications for preparing dinners because of increased pain when standing and washing up … I need support from another person to assist with mopping, vacuuming, changing bed linen, cleaning bathrooms, spring cleaning.
The Applicant also advised that he had rarely changed his sheets since losing domestic assistance and had significantly modified his self-care, for example, by showering infrequently or using a podiatrist for his foot care because he could not reach his feet. He had also modified his meal preparation, by cooking less often but in bulk, to accommodate the pain he experienced when he stood for too long in the kitchen. He had replaced the lawn in his back garden with artificial turf because he could no longer do yard maintenance.
In his SOFIC, the Applicant also contended that the after-effects of physical exertion, which often confine him to bed for the day following a shopping excursion, for example, should be considered as part of assessing substantial impairment:
Consideration must also be given to all those tasks a person cannot participate in at all during periods when they can only rest because they have overdone things and overexerted themselves, and/or periods when their psychosocial impairment is especially debilitating.
The Applicant’s treating psychologist, Mr Geoff Bowser described the impact of his depressive disorders, in combination with his chronic pain, on his mental function, particularly:
Extreme difficulty concentrating; impaired verbal performance; impaired ability to manage emotions; loss of interest in sex; intermittent suicidal ideation; irritability; negative self-evaluation.
Mr Bowser agreed in cross examination that the DASS test results for Mr Power’s depression performed by him confirmed more severe depression than the same test administered by the OT, Ms Vander Noord. While observing that his test results over time “consistently got scores in the severe range for depression”, he also speculated that the Applicant might have been buoyed by the OT’s attendance and:
whether the visits themselves actually brought some improved - very improved mood that something - now he was getting some attention and answer - I can’t say
Although much was made of the disparity in test results at the hearing, the Respondent suggesting the results of Ms Vander Noord’s assessment should be preferred, and relied upon, the Tribunal finds the psychologist to be a professional and reliable witness, as it has Ms Vander Noord. It is understandable that a test result such as this on one day might differ markedly from the result on another, and Mr Bowser’ explanation is plausible. In any case, since the parties are agreed the Applicant suffers from severe depression, which has already been accepted by the Respondent as a permanent impairment, the difference in test results is of little use in determining the impact of the Applicant’s depressive disorders on his functioning. As the Respondent concluded in his final submissions, “it doesn’t look like that DASS result or score has actually fed into the functional assessment of what can and can’t be done on any particular day”. The Tribunal accepts that submission.
The psychologist agreed, in cross examination, that he had not carried out a functional assessment of the Applicant but was satisfied from his observations over many years that the Applicant had “extremely low perceptual reasoning”, “extreme difficulty concentrating”, “when reading a newspaper has limited recall of previous paragraphs” and was often frustrated. Indeed, Mr Bowser considered the Applicant’s depression to be so severe it accounted for what appeared to be significant loss in some aspects of cognitive function; no evidence was provided of the impact of that loss on the Applicant’s mobility, self-care or social interaction.
The Applicant’s treating GP, Dr Ben Seckold, reported that:
Glen suffers from extreme fatigue; this is multifactorial and caused by his inability to move and function normally. It’s also as a result of significant amount of medication to try and control chronic pain. His chronic fatigue and lack of condition means he struggles to perform a reasonable number of tasks each day.
Dr Seckold told the hearing that the Applicant’s reliance on extensive and high doses of painkillers such as Norspan 40 and Oxynorm were required by the pain suffered by the Applicant and that the medication, in combination with the pain, “would cause fatigue and …he would struggle to perform a lot of the activities of daily living”.
Dr Seckold acknowledged during cross examination that although he observed the Applicant’s slow mobility and use of a walking stick, he had not carried out any functional assessment.
The Applicant (during cross examination) agreed that he performed many of his own household cleaning tasks, cooking tasks and self-care tasks, but that doing so for any length of time meant he was exhausted and unable to get out of bed the following day. He also described the many rests he needed to take while performing these tasks and some of the adaptations he had made to ensure tasks could be done, such as cooking food in batches and purchasing readymade meals from the supermarket.
The Applicant acknowledged that although there were a limited number of tasks he could no longer do, such as stripping and re-making his bed or cutting his toe-nails or catching the bus to the shops, there were many more that he managed to do, but with a struggle, or, like his showering, less often and with the aid of assistive technology.
The Respondent relied on Madelaine, which described a substantially reduced functional capacity “in the sense of the significant gaps …to maintain personal health, safety and well-being”. The Respondent noted that the Applicant lived at home by himself and “so, in that sense, he is looking and faring for himself, so there is some basic capacity at present to care for himself”.
Regarding dressing and showering, the Applicant said he dressed downstairs, using the lounge and wine-rack for support if needed, and similarly, his showering was difficult, and only undertaken twice a week, but, with basic equipment such as a grab rail and a long-handled sponge, it could be done. The Respondent suggested the Applicant could undertake a multitude of household and grooming tasks, albeit it slowly or differently.
However, as contended by the Respondent, Rule 5.8 (Participants Supports) provides, with the Guidelines, greater detail on when an activity is substantially impaired. The Rule requires that:
The person is unable to participate effectively or completely in the activity…without assistive technology, equipment (other than commonly used items such as glasses).
The term “commonly used items” is not defined in the Act or the Rules. The Guidelines (Becoming a Participant) implies that these at least are disability-specific and prescribed by a doctor, allied health professional or other professional:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports…
These disability-specific supports include:
·A high level of support from other people, such as physical assistance, guidance, supervision or prompting
·Assistive technology, equipment…prescribed by your doctor, allied health professional or other medical professional.
Relevant case law has considered the question in further detail and the Respondent applied the reasoning of the decision in Rooney to the assistive supports recommended by the OT in this case, as well as the supports already used by the Applicant. In Rooney, the Tribunal considered that the term commonly used items applied to items used by people with the disability concerned (emphasis added). Further, that a commonly used item would be generally accessible; not require specialised customisation or installation; be relatively simple to use; and relatively inexpensive.
The Respondent contended that none of the items currently used by the Applicant or recommended by the OT met the threshold for assistive technology as set out in Rooney; they were in fact everyday items.
The Applicant considered that because these additional items had been recommended by the OT, they met the definitional threshold. In his closing submissions, he listed the OT’s recommendations:
“I need modification, toilet grab rail and shower grab rail. Personal care; toilet and showering. I need modification grab rails in the bedroom to provide support when dressing. I need a bedpost to get in and out of bed, which she did recommend when she was there. I need modification, an additional rail for the internal stairs, bilateral rail…bathroom modifications”.
The Applicant also referenced the OT’s recommendation that he install a dishwasher, which, he said, was not an inexpensive item. The Applicant considered these were non-standard modifications and therefore met the requirements of Rule 5.8 as they were not everyday items. The Applicant did not explain what he considered non-standard modifications to be (other than modifications recommended by the OT) and the Tribunal notes the railings and bathroom modifications were not classified by the OT as non-standard.
The Applicant was particularly aggrieved that a walker had not been recommended by the OT. A walker would presumably assist with both selfcare and mobility, so I will address it here and reference it again, later in this decision. Although the Applicant mobilised only with a walking stick (a commonly used item), he believed he needed a walker and that this should have been recommended by her. Further, the Applicant believed a walker was not a commonly used item and would therefore qualify as assistive technology.
Conversely, the Respondent considered a walker to be a commonly-used item. The Respondent went further than relying on the OT’s evidence that she was unable to provide such a recommendation for a walker. The Respondent observed that since a walker could be procured from a store without a medical referral, it did not meet the Guidelines’ stipulation that it be prescribed by a medical professional. Relying upon Rooney, a walker was also not expensive, inaccessible, requiring customisation or difficult to use. The Applicant could easily have bought such a walker at a local store if he felt he would benefit from it and without demonstrating any level of impairment. It was therefore an everyday item.
The Tribunal also notes that equipment such as a walker can be bought under state-based subsidy schemes.
The OT, Ms Vander Noord, was asked during the hearing whether the aids she had recommended were “more disability-contingent or more aged contingent?” She replied:
Mostly recommendations that are there, or actually all of the recommendations I’ve included in that particular section, I would say are more age-contingent.
In final submissions, the Applicant told the Tribunal it was not up to the OT to decide the basis on which a support was provided:
I submit that the OT is not qualified to make this comment, she is not qualified to decide whether, or the extent to which the reason for my impairments and need for non-standard items such as grab rails, is because of my age. The OT is only qualified to assess function and support needs.
The Tribunal considers the OT was qualified, on the basis of her experience, to observe that the supports recommended were more related to the Applicant’s ageing than his impairments (of pain and depression), but finds, as the Applicant suggested, that the distinction is largely immaterial.
I am inclined to agree with the Applicant that a walker does not, applying the natural meaning of the word ‘everyday’, constitute an everyday aid. The streets of Australia are not yet overrun with people on walkers, they are specifically used almost entirely by people with various mobility disabilities, including those associated with old-age, and these do not make up anything approaching a majority of the population. However, the Guidelines are there for the purpose of providing greater clarity than can be gleaned from a mere dictionary and those Guidelines require that items judged to be assistive technology, for the purposes of the Act, meet the stipulations already examined in this decision.
Accordingly, considering the evidence provided to the Tribunal and the application of R 5.8 and the relevant Guidelines, I find that none of the aids used by the Applicant, or recommended for use by the OT, would constitute assistive technology and that even were a walker to have been recommended, that would not be regarded as assistive technology.
Unfortunately for the Applicant, there remain other tasks, such as heavy cleaning, changing the bed linen and cutting his toe-nails, which are beyond his capabilities due to his difficulty with bending. The Respondent bundled these up with the many tasks the Applicant could do, and concluded, overall, that considering “the bundle as a whole, there was no substantial reduction”.
The Applicant contended there were many grooming, self care and household tasks which he could not do at all, and required the assistance of another person in the form of:
“support from another person to assist with each of the following; mopping, vacuuming, changing bed linen, cleaning the bathroom, spring cleaning, yard maintenance and then grocery shopping and transport…The OT had also recommended freshly prepared meals provided by a meal preparation service three times a week.”
The Applicant also agreed he received assistance from a friend who helped him to make the bed and that he now regularly attends a podiatrist for foot care. He prepares his own meals during the week and manages, albeit slowly, differently and less often than otherwise, his self-care tasks. Overall, considering the disability aids available to the Applicant and the support of his friend, and potentially his granddaughter, in assisting with tasks such as changing the bed linen, and considering all the evidence provided to the Tribunal, the Tribunal finds there is a reduction in capacity for self-care, but not, as found in Madelaine, a substantial reduction.
The contribution of the Applicant’s chronic pain, which the Tribunal accepts as severe, and its connection with his depression and possible lack of motivation to clean, cook and maintain his level of grooming and so to impair his self-care, is a more difficult matter to determine. This was not explored or evidenced by the Applicant or his witnesses during the hearing, although several references were made to the Applicant’s depression and suicidality, but not linked to his motivation to care for himself. The Tribunal considers there remains insufficient evidence of substantial impairment in selfcare, whatever the Applicant’s level of motivation to take care of himself.
Social Interaction s 34 (1) (iv)
The Applicant contended that his chronic pain and depression had combined to severely restrict his social interactions. His psychologist professed to being so concerned about his suicidality that he encouraged the Applicant to start walking up to his local hotel twice a week and, mindful of alcohol consumption, catch up with friends and watch a sporting match on television. The Tribunal accepts the reality of the psychologist’s concern and notes that the Applicant has continued to walk to the hotel and engage with his friends on a regular basis.
The Applicant stated during the hearing that before his accident, he was a gregarious person, brought up in the hospitality industry and who was the “face of the club” he managed but that:
since I finished work in 2004, this is where I struggle with people, because I’ve gone right into my shell from 2004. I’ve lost all self-confidence, where before, you know, I’d probably talk the leg off a stool before, but since 2004 I’ve lost that ability, so that’s why I’m very guarded about social interaction, because of how much I’ve withdrawn into myself.
He also described his life as a “very depressing and isolated existence” but spoke to his granddaughter regularly on the telephone and joined her for outings approximately once a month. He also enjoyed his time with a friend:
“the girl that comes in and changes sheets and took me to Aldi. Well, she lifts me up immensely, she’s got a really bubbly personality, you know... You’ve only got to speak to her for a couple of minutes and she’ll put a smile on your dial. I look forward to when she rings me. These are big moments for me because I have few instances of them in my life”
In cross examination, the Applicant also agreed he spoke to his neighbours and got along with them once he knew them.
The Tribunal fully appreciates that the Applicant’s social life is significantly reduced, through the absence of work and because of the amount of time he spends at home alone and in pain. The Applicant painted a picture of himself as a man who had enjoyed work and its engagement with people and had done so from childhood with his parents, running hotels. It was clear during the hearing that he was a pleasant and friendly person who undoubtedly would miss engagement with people and that the death of his wife would also have contributed to his loneliness. The Tribunal also accepts the Applicant suffers from pain, which would physically discourage him from leaving the home, and chronic and sometimes acute depression associated with that pain. However, at no stage did he say his depression or chronic pain prevented him from engaging with people; clearly, he engaged happily with people whenever the opportunity presented itself, as it did for the two days of the hearing. As his own evidence suggested, without his former paid work, those social opportunities have become significantly limited and he has become, much to his dismay, lonely. At the hearing, the Applicant was asked if he was aware of a means-tested taxi subsidy scheme for people with mobility problems, and although he was not aware of it, it is access to schemes such as this which would enable the Applicant to leave his house more often and travel further, and so engage socially.
In his closing submissions, the Applicant distinguished his case from the circumstances of Madelaine, where the Applicant was able to drive her car and “get around the community”. He considered his inability to drive, which he did not say was disability-related, and the consequent over-exertion he suffered whenever he did go into the community, significantly restricted his social activity. He told the Tribunal that he rarely caught buses because they were difficult to stand in and there might still be a walk at the end of the bus trip, which he found difficult.
There is no doubt the Applicant enjoys some social activities and interactions with people which could be extended if he were able to leave the house on days other than those where his over-exertion caused him to stay in bed for the day. The institution of two meals each week at the local hotel with friends is demonstration of potential remedy.
The Tribunal finds, based on the evidence provided to it, that the Applicant, although suffering some social loss because of his intermittent need to recover from over-exertion, loss of confidence and the depression associated with his chronic pain, is not substantially socially impaired although he is lonely and would, because of his gregarious nature, enjoy engaging with people more often.
CONCLUSION
The Tribunal concludes, based on the evidence, that the Applicant is not substantially impaired in any of the functional areas identified, namely mobility, self-care and social interaction and therefore the requirements of s 24 (1) (c) are not met.
The Tribunal, appreciating that many supports similar to those recommended by the OT could have been provided by the Commonwealth Government’s aged care support system, My Aged Care, invited further submissions from the parties about the application of s 24 (1) (e), which considers “whether the person is likely to require support under the NDIS for the person’s lifetime… whether there is an agency, department or service providing comparable mainstream support”. The Tribunal, mindful that s 24 is the gateway provision of the Act, was concerned to ensure that if the Applicant was found to have substantially reduced functionality in any of mobility, self-care or social interaction, therefore meeting the requirements of s 24 (1) (c) of the Act, whether s 24 (1) (e) was also met.
The parties both relied upon several cases, including Foster, which found that the question is not simply whether there are comparable supports available under another system, but, in the words of the Full Federal Court’s decision (par 97):
Whether [the Applicant] is likely to require support for his lifetime under the NDIS once it has determined …substantial reduction in his functional capacity”.
In other words, that s 24 (1) (e) is only enlivened (emphasis added) if the requirements of s 24 (1) (c) are met for at least one function.
Accordingly, since the Tribunal has concluded the requirements of s 24 (1) (c) are not met, it is not necessary to consider whether there are comparable supports provided under alternative schemes, such as My Aged Care, as required by s 24 (1) (e).
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review of the Respondent made on 17 June 2019, that the Applicant does not meet the access criteria in s 21(1) of the NDIS Act.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward
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Associate
Dated: 18 October 2023
Date of hearing: 16 – 18 August 2023 Advocate for the Applicant: Ms Shelly Roller Counsel for the Respondent: Mr Nicholas Swan
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