Puster and National Disability Insurance Agency - [2023] AATA 1760

Puster and National Disability Insurance Agency [2023] AATA 1760 (21 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2020/5079
Re:Lori Puster
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:21 June 2023
Place:Hobart

The decision under review is affirmed.
....[sgn]....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Access to scheme - Decision that access criteria not met - Disability requirements – Early intervention requirements – Substantially reduced functional capacity – Mobility – Self Care – Decision under review affirmed
Legislation
National Disability Insurance Scheme 2013 Act (Cth)
Cases
Pettit and National Disability Insurance Agency [2022] AATA 272
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Mulligan v National Disability Insurance Agency [2015] FCA 544
Dyson and NDIA [2022] AATA 3252
FBJV and NDIA [2021] AATA 913
CKJW and NDIA [2021] AATA 983
James and NDIA [2019] AATA 4248
Secondary Materials
National Disability Insurance Scheme (Becoming a participant) Rules 2016
NDIS Operational Guidelines - Access to the NDIS (Guidelines)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION

This matter involves a review of an internal decision of the respondent made on 27 July 2020 affirming an earlier decision declining the applicant’s application for access to the National Disability Insurance Scheme (NDIS).
BACKGROUND
The applicant is 60 years of age and was born in the United States but moved to Australia approximately 20 years ago. The applicant lives by herself in a two-bedroom single level house in a rural location in Tasmania. She has been living in the house by herself for approximately six years. Prior to that she lived with a partner, but they have since separated on amicable terms. The house is situated on what is described by the applicant as being a “bush block” with approximately 10 ha of eucalyptus forest. The applicant keeps a number of ducks on the property. She also presently cares for two rescue dogs.
The applicant has a background in the arts with a bachelor’s degree in fine arts and photography. She has previously worked in wildlife care and also as an AV technician. She has not worked for a number of years.
The applicant claims to suffer multiple conditions including fibromyalgia, peripheral neuropathy, chronic lower back pain, pelvis pain and essential tremors. The applicant’s submissions also referenced a number of additional conditions including global chronic pain, chronic fatigue, clinical depressive disorder and hashimoto’s thyroiditis.
The applicant made an application to become a participant in the NDIS on 25 March 2019. On 4 March 2020 the respondent advised the applicant that her application was refused on the basis that she did not meet the access requirements set out in the National Disability Insurance Scheme 2013 Act (Cth) (NDIS Act). Subsequently the applicant sought an internal review and on 27 July 2020 the respondent advised the applicant that it had affirmed the earlier decision refusing the applicant’s application.
The applicant then subsequently applied to have the 27 July 2020 decision reviewed which is the matter presently before this Tribunal.
LEGISLATIVE BACKGROUND
The legislative provisions relevant to the issues in dispute before the Tribunal are set out in the NDIS Act including, more specifically, the objects and principles set out in Part 2 of Chapter 1 together with sections 21, 22, 23, 24 and 25 of the NDIS Act.
In addition, in giving consideration to this matter the Tribunal has also had regard to:
(a)the National Disability Insurance Scheme (Becoming a participant) Rules 2016 (Rules); and
(b)the NDIS Operational Guidelines - Access to the NDIS (Guidelines). The Tribunal accepts that the Guidelines represent government policy in relation to the administration of the NDIS Act and that in making decisions in the present case, regard should be had to the Guidelines unless there is a cogent reason not to do so.[1] The Tribunal is satisfied there is no cogent reason not to have regard to the Guidelines in the particular circumstances of this case.
[1] See Pettit and National Disability Insurance Agency [2022] AATA 272 and Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
ISSUES
The respondent concedes that the applicant meets the age requirements in section 22 of the NDIS Act as well as residence requirements in section 23 the NDIS Act. Therefore, the residual question for determination by the Tribunal is whether the applicant meets the disability requirements in section 24 or the early intervention requirements in section 25 of the NDIS Act.
CONSIDERATION
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.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
     (4) Subsection (3) does not limit subsection (2).
Rule 5.8 provides as follows:
5.8     An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)     the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)     the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)     the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal accepts the respondent’s contention that Rule 5.8 is not intended to be an exhaustive definition of substantially reduced functional capacity and does not exclude the necessity for the Tribunal to give a broader consideration to the activities identified in section 24(1)(c) of the NDIS Act.[2]
[2] See Mulligan v National Disability Insurance Agency [2015] FCA 544 at [77].
Based on a medical certificate produced by the applicant’s general practitioner, Dr Patel, dated 23 July 2020 the applicant’s substantive medical conditions are as follows:
(a)The applicant’s primary medical condition is stated to be fibromyalgia. This is described as a permanent and lifelong disability for which the applicant requires regular pain management therapy and regular psychological input for chronic pain issues. The applicant is stated to have completed a long course of rehabilitation-based physiotherapy and hydrotherapy with poor outcomes “as it did not help with her pain”. Dr Patel states in the certificate that the applicant “does not require any more treatment as all possible treatment options for fibromyalgia have been exhausted with poor outcomes”. Dr Patel states that due to the applicant’s fibromyalgia and associated chronic pain issues she is restricted in her mobility.
(b)The applicant’s secondary medical conditions include peripheral neuropathy for which the applicant takes B12 supplements. Dr Patel notes that there has not been any available treatment for this condition and that the suggested facet blocks and physiotherapy have been ineffective. Dr Patel notes that with time it will progressively worsen and that the condition has restricted her life as it affects her hands and feet and consequently there is an increased risk of falls.
(c)A further secondary condition is that of chronic lower back pain and pelvis pain for which the applicant currently takes pain medication under the supervision of a pain specialist. She is also seeing a pain psychologist for her chronic pain issues. Again, Dr Patel notes that the applicant has had multiple facet blocks but they have been completely ineffective and that there is no further treatment in response to the condition.
(d)An additional secondary condition is that of essential tremors for which the applicant has been prescribed medication and is also seeing a neurologist. Dr Patel notes that it is a permanent condition, that there had been poor outcomes from interventions to date and no further treatment is recommended.
The Tribunal materials include a letter dated 2 November 2021 from Dr Philip Reid, a psychiatrist who conducts his practice as part of the Persistent Pain Service at the Royal Hobart Hospital. In his letter, Dr Reid confirms that the applicant has been a patient of the Persistent Pain Service for over 10 years. Dr Reid states that the applicant suffers from chronic lower back pain, fibromyalgia and major depression. Dr Reid notes that after 10 years of treatment he considers the applicant’s conditions permanent and that he knows of no alternative treatment that would improve her outcome.
The Tribunal materials include a consultation summary of consultant neurologist Dr Lucie Aldous dated 24 March 2016 which notes the applicant’s worsening tremor. Dr Aldous makes reference to the applicant having been known to her since around 2010 and that the applicant had commenced on gabapentin through the Pain Unit and that treatment has subsequently escalated. Dr Aldous notes that the applicant’s tremor is “now interfering with functioning particularly writing and typing”. Dr Aldous notes that the applicant’s conditions appear consistent with essential tremor affecting both upper limbs and occasionally extending into the head. Dr Aldous notes that the applicant’s upper and lower limb power is well preserved. In the consultation summary Dr Aldous mentioned a number of alternative medications that could be utilised by the applicant to improve her symptoms.
The respondent concedes the applicant’s conditions of fibromyalgia, peripheral neuropathy, chronic lower back pain and pelvis pain and essential tremors meet the impairment criteria for the purpose of section 24(1)(a) of the NDIS Act. The respondent also concedes that these impairments are permanent for the purpose 24(1)(b) of the NDIS Act. The respondent also concedes that the applicant’s impairments affect the applicant’s capacity for social and economic participation for the purpose of section 24(1)(d) of the NDIS Act.
The Tribunal accepts these concessions as being appropriate.
The respondent contends that it would be appropriate for the Tribunal to treat the applicant’s claim for global chronic pain as being interchangeable with her claim for chronic lower back pain and pelvis pain. The Tribunal agrees with this contention and has proceeded accordingly.
The respondent contends that with respect to the applicant’s other additional claimed conditions of chronic fatigue, clinical depressive disorder and hashimoto’s thyroiditis there is insufficient evidence of diagnosis and appropriate treatment and outcomes before the Tribunal to support a finding that such conditions should be accepted as separate stand-alone conditions that satisfy the permanency requirements in section 24 or section 25 of the NDIS Act. The Tribunal accepts this contention.
The Tribunal accepts the respondent’s contention that there is very little in the medical records that relates to a diagnosis or comprehensive course of treatment for hashimoto’s thyroiditis and certainly insufficient to support a claim of permanency. Notwithstanding this conclusion, the Tribunal accepts that there is evidence that the applicant suffers from a low thyroid function which does impact on her levels of fatigue.
With respect to a depressive disorder and chronic fatigue, the Tribunal acknowledges that the applicant suffers from symptoms of depression and fatigue attributable to the applicant’s broader underlying conditions of fibromyalgia chronic lower back pain and pelvis pain, peripheral neuropathy and essential tremor. The Tribunal is not satisfied that there is sufficient evidence of diagnosis or a course of comprehensive treatment in respect of major depression or chronic fatigue as stand-alone conditions. The Tribunal also accepts the respondent’s contention that chronic fatigue is not strictly within Dr Reid’s expertise as a psychiatrist. In reaching this conclusion, the Tribunal does not wish to suggest that the applicant has not or does not suffer from depressive symptoms such as poor sleep, blue moods or a bleak outlook, as described by Dr Reid, as a feature of her fibromyalgia or other underlying conditions nor that the applicant does not struggle with fatigue also as a feature of her other underlying conditions. Rather, there is insufficient independent medical evidence to support a diagnosis of either condition as stand-alone conditions that meet the permanency criteria for the purpose of either section 24 or 25 of the NDIS Act.
The residual issues in dispute in respect of the disability requirements therefore are:
(a)whether any of the applicant’s impairments results in a substantially reduced functional capacity to undertake one or more of the activities within the meaning of section 24(1)(c) of the NDIS Act; and
(b)whether the applicant is likely to require lifetime support of the NDIS for the purpose of section 24(1)(e) of the NDIS Act.
In undertaking its assessment of the applicant’s functional capacity the Tribunal has had regard to the applicant’s statements of lived experience including those dated February 2021 and 12 October 2021, and also the evidence from the applicant at the hearing itself.
In relation to her functional capacity the applicant gave evidence to the Tribunal that:
(a)until recently the applicant volunteered as a state registered wildlife carer however she has given up that role as a consequence of what the applicant describes as her chronic pain, fibromyalgia and essential tremors. The applicant has also given up her job as a house assessor.
(b)the applicant usually wakes up at around 9:30 AM but sometimes it can be as late as 11 AM if she is feeling particularly fatigued;
(c)the applicant can get out of bed using a lift handle to swing herself around and brace on the windowsill;
(d)after getting out of bed the applicant will feed the dogs and take her first meds for the day;
(e)if she feels up to getting out of bed the applicant will switch her computer on in the living room and sit in her chair with lots of pillows for support;
(f)the applicant snacks during the course of the day and usually has just one meal of vegetables with tofu or a fish product. The applicant states that she does not have enough energy to cook more than one meal and frequently not even that.
(g)the applicant will feed the ducks before dusk;
(h)sometimes during the day the applicant will bathe but sometime she does not have the energy;
(i)the applicant will go to bed around 10-11 PM and will take another round of medications. Sometimes she does not get to sleep until much later usually between 1 AM and 2 AM;
(j)once a week someone comes to clean for two hours so the applicant picks up things a bit before the cleaner gets there;
(k)as an example, the applicant describes that she might start some laundry or move things off the kitchen bench or pick up the dog beds from the floor, all of which takes significant energy from her which she pays for the following days;
(l)the applicant describes experiencing significant fatigue for days “even weeks, even months” after she has expended significant energy. The applicant describes not being able to walk or carry anything because afterward she will be in “so much pain”. The applicant describes that when she is fatigued and in pain she will find it difficult to go to sleep and will be unable to do even the most menial tasks until her condition begins to improve;
(m)the applicant’s essential tremors condition limits the capacity to do things with any degree of precision;
(n)the applicant describes a “good day” as not having an existential crisis and not becoming overwhelmed by the enormity of what she can no longer do and a “bad day” is having an existential crisis. The applicant states that on a bad day she may even skip brushing her teeth because it’s too onerous;
(o)when asked how often she has good and bad days and what is average the applicant stated that it all varies based on factors outside her control and that she is not sure what is a good day anymore. She states that sometimes rolling the wheel on the computer mouse hurts and sometimes typing hurts and she finds thinking exhausting;
(p)the applicant drives but only as far as is necessary;
(q)the applicant walks but only as far as she has to. She notes that when shopping she limits her browsing and sticks to the aisles that she knows she needs things from. She states that she walks with a cane or staff whenever outside of the house. She states that at home even with her staff she is limited in her mobility to a very small area around the house;
(r)the applicant states that she is able to get in and out of bed because she has a hoist over the bed and things to brace against;
(s)the applicant states that she has no issues with having a bath but she does have an issue with low blood pressure when she stands up and that this presents a risk of falling;
(t)the applicant states that she shops once every week to 10 days on average and that she engages in meal preparation but not every day;
(u)the applicant states that she puts clothes into the washing machine so that the cleaner can then hang them out. She states that she then takes the clothes down and the cleaner then folds them the following week.
(v)the applicant states that she can no longer foster animals but that she is hoping that she can start up again but with someone’s assistance;
(w)the applicant manages her own finances;
(x)the applicant’s family is overseas and her friends have mostly moved elsewhere;
(y)the applicant stressed she has a lot of contact with online friends and acquaintances on a daily basis and that it is her lifeline to the world;
(z)the applicant’s evidence was that as a consequence of her underlying medical conditions she finds effective communication and engaging insocial interests and learning extremely exhausting. The applicant stated that as a consequence of her impairments she has become isolated from her community, her family, and her friends as well as the eventual breakdown of the relationship with her former partner who was previously her main carer;
(aa)The applicant claims that on the basis of what she describes as chronic fatigue and major depression she experiences “mental fog and laps of focus”;
(bb)The applicant claims that she “cannot adequately groom [her]self”. She stated that prior to the deterioration in her conditions she would normally have a shower every day but now it is closer to once or twice a week when she is feeling a bit better. She stated that showering makes her feel exhausted and that if she spends too much energy that she can find it difficult to recover for days or weeks at a time;
(cc)the applicant stated that when she is in the shower she is continually dropping the bath soap, shower cap and sponge due to her essential tremor condition;
(dd)the applicant’s evidence is that she no longer eats fresh food and she relies on canned foods due to the difficulty of cooking and at times the fear of burning the house as a consequence of her brain fog and chronic fatigue;
(ee)with respect to mobility in her statement dated 12 October 2021 the applicant stated that she can walk 10 metres comfortably but has extreme difficulty after that distance. She stated that she uses a walking stick to keep balance and occasionally her hiking pole to keep her from having a fall. The applicant also stated that she will sometimes lean back on a wall in order to control her falls particularly when she is having an episode of spasms, chronic fatigue or brain fog;
(ff)the applicant’s evidence was that she would like to go back to learning more about nature and enrolled in a volunteering or paid work but that she does not believe this is possible any longer because her essential tremors make writing near illegible at times and on some days her typing is “one key forward and two keys back”;
(gg)the applicant states that her essential tremors cause her difficulty when trying to type or eat and that it causes her arms to jerk and knock things off the desk. The applicant stated that she gets worried that she may choke when eating;
(hh)the applicant maintains that the effect of her conditions is episodic and fluctuates day-to-day;
(ii)the applicant stated that she has good days and bad days and that if she expends too much energy on a good day it can extend the period of time before she recovers and feels as though she has sufficient energy to do things again;
(jj)the applicant states that she feels sad about everything that she has lost including all of her independence without supports or interventions;
(kk)the applicant stated that she relies on a community-based support worker to come in weekly to help with her domestic cleaning and she finds this some consolation. She stated that her domestic support is not enough as she is only available for two hours a week which is largely focused on cleaning and assisting the applicant in changing the linen on her bed;
(ll)the applicant stated that the lack of support she has for her impairments has caused her emotional downturns which she claimed have resulted in major depression. She stated that she attends therapy and sees a psychologist at the pain clinic however this has not brought any solution to her impairments;
(mm)the applicant stated that her impairments cause her to miss medical appointments. The applicant stated that she is unable to drive large distances and that her severe fatigue and chronic pain make life unbearable. She stated that she conserves her energy for driving in order to get her medications at the chemist and other essentials;
(nn)the applicant stated that there are days where she has stress incontinence and that she has to wait for days before being changed because she is too weak to change or have a bath;
(oo)she stated that with her essential tremors something as simple as opening a bottle cap can be extremely strenuous;
(pp)the applicant’s evidence was that she has a background in the arts and was a trained artist, including working as a jeweller, but that she has largely lost the use of her hands. She also told the Tribunal that she was previously an enthusiastic photographer but that she engages in photography very rarely now because of her conditions;
(qq)the applicant stated that she has always been very self-sufficient and independent and focused on helping others but that due to her conditions she doesn’t feel she is able to be self-sufficient anymore;
(rr)the applicant stated that she wanted to learn new skills and be useful for her community and would like to reengage in her volunteering role and contribute to wildlife care. She also stated that she would like to get back into diving as she loves being in the water and feeling sense of weightlessness. She stated that these types of activities were “a huge part of my sense of self”;
(ss)the applicant also stated that she would like to get equipment to allow her to travel around her bush block and take photos again and rediscover a bit of life and a sense of purpose.

The applicant’s evidence at the hearing included the following:
(a)she walks with a cane, has very poor balance and does not walk or stand for any significant period of time or distance;
(b)walking and standing and moving at all is painful;
(c)she has exertion intolerance which means that when she uses energy she will pay later on with significant pain. The applicant gave the example that when going out for a doctor’s appointment and shopping recently she has not been able to fall sleep until about four in the morning due to the pain she is feeling in her legs;
(d)the applicant confirmed that she could walk 10 metres assuming that she does not walk too quickly because if she does she’s at risk of falling. She stated that even on a good day when she is walking in the house she will always have a hand out touching the wall or piece of furniture to steady herself. The applicant stated that on a bad day she does not divert from A to B. She stated that on a bad day if she drops something it just stays on the ground because she doesn’t have the energy to pick it up;
(e)the applicant stated that sometimes she forgets to take her medication despite trying very hard to remember. The applicant describes experiencing a great deal of “brain fog”;
(f)the applicant told the Tribunal that on a bad day she struggles even to get out of bed because she is in so much pain;
(g)the applicant stated that she can drive but that she only does so if she has to. She stated that she is concerned about her driving because she doesn’t have the same mental acuity that she once did and that she would much prefer someone else to drive for her. She stated that it exhausts her to drive, it exhausts her to go shopping and it exhausts her to get out of the house;
(h)the applicant stated that she no longer does activities with her dogs such as taking the dogs to the park and she now just lets them outside to exercise in her backyard. The applicant stated that she would occasionally take the dogs to the vet but otherwise does very little in terms of maintenance of the dogs other than essential care. The applicant told the Tribunal that she can no longer take care of the pademelons at all and has far fewer ducks than she previously did and will possibly get rid of the ducks due to her inability to care for the animals;
(i)the applicant stated that she can get out of bed by rolling onto one side and using her elbow to push herself up and then leveraging off the windowsill. She told the Tribunal that she uses the bed lift in order to sit up and then swing her legs over to get out of bed;
(j)the applicant stated that she can go to the toilet when she needs to although sometimes she will wee before she gets to the toilet. She stated that she has urinary incontinence;
(k)the applicant stated that she used to shower every day until approximately four years ago but since then it has been the decreasing. She told the Tribunal that she now bathes about twice a week because she just doesn’t have the energy;
(l)the applicant stated that for gross motor functions she’s usually okay with her tremors but that sometimes she will have difficulty getting the foil off the bottle of shampoo. The applicant told the Tribunal that her tremors have significantly impacted her capacity to undertake artistic activities;
(m)the applicant stated that the more she uses her body, including her voice, the shakier she gets and if she expends too much energy her hands get shakier to the point where she may drop a cup or be unable to use a fork;
(n)the applicant stated that she makes her bed in the sense that she folds her doona over but not to the point where it is neat;
(o)the applicant stated that despite having a cleaner come once a week for two hours she just does the basic cleaning like the sinks, the bathtub, the bed and the floor. She doesn’t get into the storage area and over time things just pile up here and there;
(p)the applicant stated that she doesn’t really cook but that maybe once a week she will chop up vegetables and steam them up or otherwise heat up some preprepared food. She stated that she previously used to cook all the time and had three meals a day but now she has maybe a banana and then a veggie patty and apple and a couple of slices of cheese and then later in the day she might have a couple of pieces of fruit and a couple of pieces of dark chocolate. The applicant acknowledged that she would typically have one beer at the end of the day with dinner. The applicant stated that she previously homebrewed but now drinks beer bought from a store. She told the Tribunal that she would typically buy a carton at a time and leave it in the car and then bring one sixpack at a time into the house. The applicant acknowledged that when she drinks a beer of an evening she is able to go to the fridge, get the beer out of the fridge and open the bottle top. The applicant stated that she usually uses a bottle opener but sometimes a twist top;
(q)the applicant acknowledged that she has the capacity to be able to feed herself and that she is not starving although she acknowledged that there could be improvements in her diet;
(r)the applicant acknowledged that she does her own food shopping and that with respect to perishable items she brings them in from the car and into the house. She acknowledges that she carries the items and does not have a trolley or other aid to assist with that task. She told the Tribunal that it causes her to experience subsequent pain. The applicant acknowledged that it would be helpful for her to have some form of trolley to assist with this task but that she doesn’t have the energy to arrange it;
(s)the applicant acknowledged that she is able to prepare a drink for herself;
(t)the applicant acknowledged that she administers her own medications and that she does so with the use of two pillboxes;
(u)the applicant acknowledged that she manages her own foot care;
(v)the applicant was taken to specific conclusions reached by Ms Opulencia in her report and acknowledged some of those observations were correct but other observations she did not agree with and indicated to the Tribunal that she believed some of Ms Opulencia’s conclusions did not reflect the worsening of her conditions;
(w)the applicant stated that as much as she loves people she has increasingly found the arrangements to get out and see someone or preparing for someone to come over to her house, including getting dressed and trying to tidy up, too exhausting. She stated that she was also conscious of the fact that her house was a bit of a “trash pit”. She also stated that previously she could take people to different parts of the property but now she can’t even walk to the bottom of her backyard;
(x)the applicant stated that she does have social interactions online and she engages in Twitter and she can generally do computer stuff fairly well although she is finding it more difficult to type;
(y)the applicant stated that she has generally found it difficult to form new relationships because of her lack of energy and depression;
(z)the applicant acknowledged that she had more recently commenced an additional medication treatment for her essential tremor which had resulted in some minor improvement in her condition. She told the Tribunal that she also takes diazepam in order to calm her shakes and help her sleep. The applicant told the Tribunal that she also takes significant amounts of gabapentin as well as other medication in the management of her pain. She stated that pain medication doesn’t really bring her pain down it’s more a case of maintaining where it is and stopping it from becoming so overwhelming that she cannot function;
(aa)the applicant acknowledged that on some days when she has not done anything or been anywhere she can get her pain level down to what for her is minimal;
(bb)the applicant told the Tribunal that on a good day she is able to do more activity but that she knows that ultimately she will pay the price for that activity in increased pain levels and fatigue in the hours and days that follow. The applicant told the Tribunal that in that sense she doesn’t believe she really has increased capacity for physical activity on good days because she knows she will pay the price;
(cc)the applicant acknowledged that prior to her application for the NDIS she had explored through her GP the potential to undertake additional treatments including blood tests and occupational therapy under a revised care plan;
(dd)the applicant told the Tribunal that at times as a consequence of her impairments she finds it difficult to get out of the house because of a lack of energy and that on occasions she has neglected to attend appointments in the management of her health;
(ee)the applicant acknowledged that she has a car driver’s licence and currently drives a manual car which requires the use of gearstick and clutch. The applicant also confirmed that she is able to fill up the car with petrol when required. The applicant confirmed that driving to local shop takes about 20 to 25 minutes and into Hobart takes about 35 minutes. The applicant confirmed that she goes into Hobart from time to time for medical appointments as well as occasionally for other reasons;
(ff)the applicant confirmed that she recently bought a chair from Officeworks and after doing so she put the chair into her car, cut open the box, took out the pieces of the chair, brought it into the house and then put it together. The applicant confirmed that she has a lot of tools including a cordless drill that are left over from when she was previously more active. She told the Tribunal that she utilised the cordless drill when putting the chair together. The applicant also stated that she utilised an allen key for the purpose of putting the chair together. The applicant told the Tribunal that she was impacted from an energy and pain level for days after doing so. The applicant told the Tribunal that she likes putting things together and loves doing mechanical things more broadly;
(gg)in cross-examination, the applicant acknowledged that during the morning tea adjournment and also during the lunch break she was able to get up out of her chair and go into the kitchen without the use of a walking stick. However, the applicant went on to explain to the Tribunal that when she mobilises in that manner she utilises surfaces and walls in order to maintain her balance. When pressed by the respondent’s representative on whether she had in fact utilised walls or surfaces in this manner while moving to the kitchen during adjournment the applicant stated that she had not used any surfaces but had “probably used the wall once” and that when moving to the kitchen during the lunch break she had utilised a stepstool to help get up and stand. However, when pressed further the applicant acknowledged that she could have possibly moved to the kitchen without using either the wall or the stepstool for support. She told the Tribunal that she needs a walking stick when walking outside but that sometimes she can walk small distances inside the house without a walking stick and without leaning but it is “the exception to the rule”;
(hh)when it was put to the applicant that the hearing had run over a number of days and that on the second day she was able to get to the kitchen without assistance, had made a cup of tea and had put the dogs out she agreed but told the Tribunal she is taking energy from the future in doing so and that, eventually, she will pay the price for making the choice;
(ii)the applicant acknowledged that she has worked out a system for mobilising when going to the shops but that she would be aided by the use of a scooter. She told the Tribunal that she goes to the shops about every ten days;
(jj)the applicant told the Tribunal that she compromises her activity on bad days. She said that on a bad day she would walk 6 to 7 meters outside to feed the ducks and on a really bad day they don’t get fed;
(kk)when asked how many bad days she has had in the last month the applicant told the Tribunal that more than half have been difficult, and around two have been very bad and ten have been bad;
(ll)when asked how far she can walk on the flat with a stick the applicant stated around 30 meters although she conceded that when she shops it would be more than 30 meters;
(mm)the applicant acknowledged that she can mobilise on and off the toilet and in and out of a chair, that she can drive and that she can mobilise on and off a bed by utilising various methods;
(nn)when asked whether she was exaggerating the impact of her impairments the applicant denied that she was. The applicant stated that if anything she can be a bit prideful. She told the Tribunal that being disabled can be dehumanising;
(oo)the applicant acknowledged that he is able to groom her hair, is able to brush her teeth and can bathe utilising a shower hose. When asked whether she was capable of bathing daily the applicant denied that she could, saying that it requires too much energy. She also stated that she would typically only brush her teeth once a day because she doesn’t have the energy to do so more often;
(pp)the applicant acknowledged that she can feed the dogs and that, other than on a very bad day, is able to feed the ducks;
(qq)the applicant acknowledged that she can dress herself;
(rr)the applicant acknowledged that she can undertake basic tasks of meal preparation including slicing vegetables though she told the Tribunal that this can cause her pain. The applicant acknowledged that she was capable of preparing three meals a day but that she has a weight problem and also it consumes too much energy and that she takes these factors into consideration when deciding what to eat. The applicant acknowledged that she can make a cup of tea and that she is capable of using a knife and fork although she does not do so usually as her hands shake too much. She told the Tribunal that she has difficulty eating which is why she eats so much fruit because it’s physically easier to do;
(ss)the applicant acknowledged that she is able to use a camera but that she has some difficulty holding it steady. The applicant conceded that she has adapted to undertake some hobbies such as photography although she is not able to do so to the same extent as previously;
(tt)the applicant acknowledged that she is able to put clothes into the washing machine though she stated that she largely relies on her community-based support to do it. The applicant agreed that she is able use the washing on the line occasionally but that she finds it painful;
(uu)the applicant told the Tribunal that she was previously changing her bed once every three months but now with her support it is being done once a week;
(vv)the applicant told the Tribunal that her GP has looked at other possible services to help support her but that it is difficult because she is living in a rural area;
(ww)the applicant told the Tribunal her brain fog has increased significantly in the last year and that she has difficulty recalling things;
(xx)the applicant conceded that a number of practical workarounds for her daily activities could be worth exploring but she told the Tribunal that she can be scared trying new things because when she tries something new the pain balance can get out of whack;
(yy)the applicant conceded that she is of reasonable intelligence and is largely self-sufficient in her use of the computer. She told the Tribunal that she pays her own bills and expenses and manages her money and has from time to time engaged independently with the Council.
In addition to giving evidence at the hearing there were a number of reports/letters from Dr Reid in respect of both the applicant’s conditions as well as his observations regarding applicant’s functional impacts. For example, in his November 2021 letter Dr Reid makes some broad observations in relation to the applicant’s reduced functional capacity as a consequence of what he claims are her underlying conditions. Dr Reid expanded on his functional capacity observations in his evidence at the hearing. While the Tribunal has had some regard to Dr Reid’s observations in this respect it has given less weight to his observations on the basis that in making an assessment of the applicant’s functional capacity the Tribunal prefers the opinions of the occupational therapists who have provided far more detailed reports to the Tribunal on the issue of functional capacity and noting that functional assessments are more closely aligned to their areas of professional expertise than is the case for Dr Reid.
The Tribunal has also had some regard to the functional observations made by the applicant’s GP Dr Patel including those set out in Dr Patel’s supporting evidence dated 2 December 2019. However, again, given the functional assessment expertise of the occupational therapists the Tribunal has also given less weight to the functional capacity observations of Dr Patel.
The Tribunal materials also include reports from Dr Aldous, Dr Gourlay, Dr Sebire and Dr Speden. Again, the Tribunal has given less weight to these reports in assessing the applicant’s functional capacity.
The Tribunal materials contained a number of occupational therapy reports including a report from Mr Adam Kennedy dated 18 December 2019, Ms Ashlee Marano dated 29 April 2021, Ms Bethlehem Opulencia dated 28 October 2021 and Ms Wendy Roberts dated 27 April 2022. The Tribunal also heard from Ms Roberts at the hearing.
Further, the Tribunal materials include an undated statement from the applicant’s carer. Again, the Tribunal has given significantly less weight to this statement given that the applicant’s carer is not formally trained in functional assessment notwithstanding her practical experience of being exposed to the applicant in her home.
The applicant contends that, as a consequence of her claimed underlying impairments, she has suffered a substantially reduced functional capacity for the purpose of section 24(1)(c) of the NDIS Act. The applicant relies principally on the evidence of occupational therapist Wendy Roberts and also the evidence of Dr Reid as well as her own evidence of lived experience. The applicant contends that less weight should be given to the earlier occupational therapy reports on the basis that the applicant’s functional capacity is worsening over time. The applicant’s representative referred the Tribunal to the conclusion by Ms Wendy Roberts in her report as follows:
[The applicant] presents with severely limited functional capacity. Her conditions are noted by a doctor as lifelong and deteriorating in nature.
It is contended on behalf of the applicant that the applicant’s condition and associated functional capacity has further declined “dramatically and drastically” to the point where she is no longer able to care for the dogs and that steps are being taken to find alternative arrangements for her dogs.
The respondent contends that while recognising the applicant is suffering significant underlying impairments and has some notably reduced functional capacity the applicant does not meet the threshold of substantially reduced functional capacity for the purpose of section 24(1)(c) of the NDIS Act.
The Tribunal accepts the respondent’s contention that the evidence does not support a conclusion that the applicant has a substantially reduced functional capacity with respect to communication. While the Tribunal accepts that the applicant has some difficulty with memory, concentration, processing information and collating ideas and accepts that the applicant generally finds communicating energy sapping, it was very clear to the Tribunal through both its own observations and by the broader evidence that the applicant is a highly intelligent person, very articulate and capable of communicating even quite complex ideas very effectively. Based on the evidence before it, the Tribunal is satisfied that the applicant retains a high level of capacity with respect to communication.

Similarly, the Tribunal does not accept the applicant’s contention that she has substantially reduced functional capacity with respect to social interaction. While the Tribunal accepts that the applicant has limited access to friends and family due to her remote location and the energy sapping nature of her impairments, the Tribunal does not accept that the applicant has a substantially reduced functional capacity for making or keeping friends or interacting with people more broadly. In the Tribunal’s view, the applicant clearly maintains a capacity to interact with others in a social context including via the Internet or other electronic means. The Tribunal accepts that the applicant’s energy levels fluctuate from day-to-day and that on some days she does not feel up to engaging with others in a social context, however, the applicant’s capacity to engage with the Tribunal over the course of a number of hearing days strongly suggests to the Tribunal that the applicant generally retains a capacity to be able to connect with others and engage socially to a reasonable level. This is consistent with the observations of Ms Opulencia over the course of her four-hour assessment. The Tribunal is satisfied that any reduced capacity the applicant has for social interaction is certainly not at a level that is consistent with a substantially reduced functional capacity for the purposes of section 24(1)(c) of the NDIS Act.
The Tribunal is also not satisfied that the applicant has a substantially reduced functional capacity with respect to learning. Again, while the Tribunal accepts the applicant’s evidence that she has some difficulty maintaining concentration and focus, processing information and some difficulties with memory and what the applicant describes as “brain fog”, the Tribunal is not satisfied that the impacts of the applicant’s impairments in that sense are to such an extent that would constitute a substantially reduced functional capacity in respect of learning for the purpose of section 24(1)(c) of the NDIS Act. In the Tribunal’s view any impact on the applicant’s capacity for learning is slight at best. There is certainly no question in the Tribunal’s mind that the applicant retains the cognitive capacity to absorb and apply new skills or information. Ms Opulencia reported that the applicant’s cognition was normal on the basis of formal testing. Ms Marano in her report noted that in her view the applicant did not demonstrate difficulties in learning new things. Dr Patel also expressed the view that the applicant did not have any incapacity with learning.
The Tribunal now turns to the applicant’s capacity with mobility.
Dr Patel stated in her supporting evidence form dated 2 December 2019 that the applicant has “severe chronic pain issues with fibromyalgia and essential tremor and as a result she struggles with walking short distances and needs the help of transport services to get her to her different appointments. She needs a walking stick to walk and she is unable to use public transport and it would be helpful if she gets assistance with the above. The condition and impairment is permanent and will progressively worsen”.
Mr Kennedy in his report dated 18 December 2019 stated that the applicant’s fibromyalgia condition is characterised by profound pain and fatigue that limit her general function. Mr Kennedy notes the applicant as reporting that her condition also causes exertion intolerance and that even small amounts of physical activity cause pain and fatigue which can sustain for days at a time. Mr Kennedy also notes that the applicant is suffering peripheral neuropathy and that secondary to this condition the applicant also experiences pain, cramps, weakness, fatigue, impaired balance and impaired mobility “making the undertaking of domestic activities of daily living (such as cleaning and garden maintenance) very difficult”. Mr Kennedy also notes that the applicant reported as living with chronic lower back pain and pelvic pain which also limited her physical ability and that she also has essential tremors that make the completion of fine motor tasks difficult. Mr Kennedy noted that at the time of his assessment the applicant demonstrated independent mobility with a walking stick indoors but reported that she can only walk short distances (approximately 100 steps) before walking exacerbates her pain and fatigue. Mr Kennedy noted that when the applicant was mobilising outdoors on the unsealed and even terrain around her home the applicant appeared unsteady on her feet and reported that she had experienced falls in the past due to her limited balance and mobility.
Ms Opulencia in her report dated 28 October 2021 made a number of observations with respect to the applicant’s functional capacity which can be summarised as including the following:
(a)that the applicant had reported that fatigue during driving long distances was one of her main barriers to participate more substantially in her interests;
(b)the applicant feels that when she undertakes activity that causes her severe exhaustion, fatigue sets in making it difficult for her to undertake subsequent activity.
(c)the applicant finds being in the water less exhausting and a low impact exercise;
(d)the applicant experiences impaired balance and fatigue when ambulating which causes her to have falls approximately 3 to 4 times per year, however, she is able to get back up on her own after a fall;
(e)the applicant can only walk comfortably for up to approximately 80 metres on a good day noting that distances beyond this are a struggle for her. The applicant noted that she still attempts to walk longer distances when she has to but that it is a struggle and causes her pain and low levels of energy later on;
(f)the applicant reported that she can do tasks but would “pay for it later on”;
(g)the applicant was observed to be independent with her mobility, however, due to myalgic encephalomyelitis the applicant is struggling with her balance and endurance and generally requires a walking stick when mobilising. The applicant was also seen to hold onto the walls and furniture around her home to support her when mobilising;
(h)in the surrounds of her house the applicant uses a hiking pole when mobilising to assist her when walking on gravel and grass;
(i)the applicant uses a walking stick when going out into the community to support her mobility and that the applicant reported only completing necessary tasks to minimise the distance she has to walk;
(j)Due to her compromised mobility the applicant is unable to complete leisure activities and is limited with her social and economic participation;
(k)the applicant was observed to perform all of her transfers independently although the applicant reported that her transfers in and out of the bath take a lot of energy which leads to subsequent fatigue;
(l)the applicant was reported as independent when transferring from sitting to standing, on and off the toilet, in and out of bed and into and out of the car;
(m)the applicant is able to use a knife and fork to eat and slice food;
(n)the applicant reported mainly eating one meal a day and otherwise snacking through the course of the day;
(o)the applicant reported not having sufficient energy to prepare meals regularly;
(p)the applicant reported that on a good day she is able to perform grooming and hygiene activities independently but would omit performing such activities when tired;
(q)the applicant is able to wash all parts of her body;
(r)the applicant is independent with dressing and undressing although she found this activity more challenging on bad days;
(s)the applicant was observed to be able to manage buttons and zips and to remove her socks;
(t)the applicant is independent when toileting;
(u)the applicant reported having difficulty sleeping and that she is rarely able to get to sleep before 2 AM and has disturbed sleep;
(v)the applicant reported that some of her medication is posted to her home and some she is required to pick up from the pharmacy;
(w)the applicant reported missing her medication at times;
(x)during the assessment it was observed that the applicant’s pillboxes were empty which “may demonstrate inconsistencies with reports of regularly arranging her pillboxes”;
(y)the cleaning of the applicant’s house is undertaken by a support worker every Tuesday including vacuuming, mopping the floors, tidying her kitchen and cleaning her bathroom. The applicant is unable to undertake these activities due to fatigue;
(z)the applicant minimises energy expenditure for meal preparation by having frozen meals. The applicant is otherwise able to operate appliances at home;
(aa)the applicant is able to slice fruit and vegetables;
(bb)the applicant completes her own grocery shopping and is currently able to tolerate driving from home to the grocery shop and back;
(cc)the applicant reported that lifting heavy items causes fatigue and pain later in the day;
(dd)the applicant loads dirty laundry into the washing machine every Tuesday before the cleaner arrives so that it is washed in time for the applicant’s cleaner to hang out the washing. The applicant has difficulty using her clothesline because it requires her to reach over her head which exerts a large amount of energy;
(ee)the applicant drives to the local post office to collect any parcels that she has ordered;
(ff)the applicant fills the large rubbish bins with rubbish accumulated each fortnight and the applicant’s cleaner takes out the applicant’s rubbish bins;
(gg)the applicant uses a draw dishwasher and loads this every day for a week and runs it before the applicant’s cleaner comes on Tuesday and the applicant’s cleaner then puts the items back into storage;
(hh)the applicant has a large acreage on her property and hires someone to trim her grass but does not do this regularly. The applicant does not feel comfortable or safe to mobilise in her garden due to uneven surfaces and fatigue;
(ii)the applicant manages her own finances and is independent and capable of budgeting her own money but can forget things that need to be renewed such as a home insurance;
(jj)the applicant has her own car and holds a full drivers licence but reported only driving for essential things as driving can increase her fatigue. The applicant reported driving on average once per week.
(kk)The applicant reports issues with her memory, and word retrieval and taking new information. She has also reported having difficulty maintaining attention to a task. The applicant reports that mental exertion can also cause her fatigue. Ms Opulencia noted that despite the applicant’s self-reporting these issues, her own observation was that the applicant had been able to persist in making an effort to engage with her for the four-hour time frame for assessment. The applicant reported that due to difficulties with taking in new information and maintaining attention she has not been able to read the books she used to enjoy;
(ll)Ms Opulencia applied the Montréal Cognitive Assessment to the applicant where the applicant gained a score of 28/30 which is suggestive of normal cognition. During the assessment the applicant appeared to have some difficulty with word recall consistent with her self-reporting of that issue;
(mm)the applicant is independent with her communication, able to use a phone independently and able to access the Internet to get in touch with friends online and access information. The applicant reported that she utilises Twitter and Ms Opulencia noted that the applicant is able to use gestures appropriately for non-verbal communication;
(nn)the applicant is able to communicate a message and reciprocate social interactions effectively although speech may be effortful and word retrieval difficult at times. The applicant demonstrated that she is able to understand requests and instructions throughout the assessment with no difficulty;
(oo)when the applicant is fatigued she does not have the energy and capacity to sit at her computer to engage in social interaction via online platforms;
(pp)the applicant reported that she does not currently have friends that she is able to meet up with regularly or any groups that she attends;
(qq)the applicant has the capacity to get along well with people and she was observed to be comfortable with the OT despite having met her for the first time;
(rr)the applicant did not report any behaviours of concern nor were there any observed during the assessment;
(ss)the applicant enjoys caring for animals and has adopted two rescue dogs;
(tt)the applicant appeared alert and of normal effect during the assessment although she reported experiencing low moods. The applicant reported that as a consequence of her disability she has lost a lot of things for example the breakdown of her relationship with her former partner, a job, her ability to volunteer and her ability to participate in hobbies. The applicant has been restricted in doing things she likes to do and the things that bring meaning to her life;
Ms Opulencia concluded that the applicant appeared to be “a pleasant and kind lady” who was largely accepting of her condition. Ms Opulencia further concluded that the applicant is not receiving sufficient supports in order to maximise her participation in the community and in order to be able to participate in the activities that she wants to do. Ms Opulencia noted that while the applicant appears to be able to do a lot of things this causes her severe fatigue which sets in later in the day and causes her to not be able to participate in some self-care activities as well as her hobbies and interests. Ms Opulencia expressed the view that it is concerning that the applicant is not able to do the things that she likes and that, as a consequence, mental health issues may arise and social isolation will continue to occur. Accordingly, Ms Opulencia recommended the applicant be supported to improve mental health and stability. Ms Opulencia stated that improving the applicant social participation and quality of life through the provision of sufficient supports is considered essential.
Ms Opulencia made a number of recommendations including a personal alarm system, an assessment for the use of a powered wheelchair, OT intervention to assist with strategies for memory issues and energy conservation strategies, body mechanics and sleep strategies, funding for low-cost assistive technology, assistance in attending small groups for arts and crafts, referral to an exercise physician for increasing physical activity, referral to a nutritionist/dietician, gardening services and support worker hours of at least 25 hours per week to increase the applicant’s social community and economic participation and increase her quality of life.
Ms Roberts in her report dated 27 April 2022 made a number of observations with respect to the applicant’s functional capacity which can be summarised as including the following:
(a)the applicant was assessed as low functional disability on the Abbreviated Life Skills tool, moderate disability on the WHODAS 2.0 tool and assessed at upper level of medium falls risk on the Falls Risk Assessment Tool;
(b)the applicant reports falls in her home and garden and that as a consequence of peripheral neuropathy has an altered sensation in her feet resulting in a lack of sensory feedback and consequently unstable gait patterns and poor balance. The applicant reported cracking her ribs in her most serious falls injury in January 2020;
(c)the applicant was observed to have a wide gait, stooped posture and to use furniture and walls to prop or support herself. Ms Roberts notes that the applicant does not stand unsupported, has a walking stick but does not use it as prefers to use furniture due to the size of her small property;
(d)Ms Roberts notes the uneven muddy and slippery external house surroundings and that the applicant uses a walking pole to support and test the ground;
(e)the applicant has her own car and if she needs to drive she drives herself;
(f)the applicant transfers on and off the sofa by pushing the arm of the sofa to stand and then holding either a wall or other furniture to get balance;
(g)the applicant is able to transfer on and off the bed with sequential steps and uses a bed pole for bed mobility-changing position or turning over;
(h)the applicant is able to transfer on and off her bed;
(i)the applicant is able to transfer in and out of the bath with sequential steps and utilises a handheld shower head to wash her hair and body and use of grab rail to pull herself back up to standing.
(j)the applicant suffers disrupted sleep due to chronic pain and is often fatigued in the morning and can spend significant amounts of time in bed when her pain levels are higher or her mood is low;
(k)no issues reported with respect to toileting;
(l)the applicant reported to have a bath every three days depending on pain and fatigue;
(m)the applicant wears loose fitting clothing to make dressing and undressing easier. Finds buttons and laces difficult due to tremor;
(n)the applicant has a history of independent meal preparation and cooking and reports a restricted diet consisting mainly of fruit, peanut butter, yoghurt, nuts, raw and steamed vegetables, tofu and dark chocolate. The applicant reports occasionally eating fish. Reports no devices to aid opening cans and jars which the applicant finds difficult due to low hand strength and tremor. The applicant is preoccupied with not putting on weight however this has led to a diet lacking in essential food groups. Ms Roberts observed limited food in cupboards and fridge, some ready meals in freezer. Raised concerns of disordered eating patterns, lack of adequate nutritional intake and impact on applicant’s metabolism and energy levels;
(o)the applicant reported sorting clothes, using washing machine and that her cleaner sometimes helps to hang out washing as she finds it difficult and painful in her shoulders;
(p)the applicant reported being able to do some basic tidying and washing up. The applicant reported that bending over causes her a lot of pain in her back and that she avoids it if possible;
(q)the applicant is unable to change her own bedclothes due to lack of energy and unable to complete more substantive cleaning tasks;
(r)the applicant has a cleaner who helps change bedclothes and also does basic cleaning;
(s)the applicant is unable to attend to her garden or clear paths;
(t)the applicant drives to her local supermarket for basic food items usually twice per week if she is feeling up to it. Uses a walking stick to walk short distances to shops and around the store and also uses a trolley for support. The applicant reports finding these trips extremely tiring and takes days to recover;
(u)the applicant drives her car to medical appointments in Hobart;
(v)the applicant manages all of her own bills and expenses with no difficulties reported;
(w)the applicant is socially isolated. Reports some friends locally but few she sees regularly. Has lost friends who have moved interstate or who now have families and do not have time to travel to see her. The applicant reports feeling self-conscious about her disabilities and that this affects her motivation to seek new friendships. The applicant reports that her main social engagement is done online where she tries to keep in touch with friends who are interstate;
(x)the applicant describes having good and bad days and that on a bad day it can be as late as 11:30 AM before she gets up and dressed. The applicant reported feeding her dogs and then her ducks. The applicant described spending time at her desk responding to emails and editing photos and depending on her energy and pain levels she will then go back to bed for rest or sleep. The applicant reported spending most of the day in bed when she is having a bad day;
(y)the applicant reported visiting her local supermarket up to two times per week and regular medical appointments which are either at her local GP or at the hospital. The applicant reports finding her appointments extremely tiring and can take the applicant the next few days to recover;
(z)the applicant reported attending a psychologist for cognitive behavioural therapy however she stated that the journey to Sandy Bay became too much for her and she stopped and she has not explored a telehealth option;
(aa)Ms Roberts described the applicant as a self-sufficient and an independently minded person who is passionate about wildlife and learning as much as she can about local flora and fauna. Ms Roberts described the applicant as experiencing loss and grief around her loss of independent function as well as her loss of family and her partner. The applicant described struggling with her thinking and describes things as foggy and slow. Ms Roberts notes that the applicant reported despite her setbacks and losses she remains highly motivated to regain some of the independence and remains hopeful of a more productive and healthy future;
(bb)in her report Ms Roberts concluded that the applicant presents with a “highly complex picture of chronic pain and fatigue with high levels of functional disability and social isolation. However, with target supports, additions of assistive technology, adequate nutrition and small changes to home environment it is thought gains can be made to her overall independence and importantly her well-being”;
(cc)Ms Roberts made a number of recommendations, in particular, in relation to assistive technology and increased assistance of a support worker as well as occupational therapy and physiotherapy to assist with her physical conditions.

At the hearing Ms Roberts gave evidence in relation to her observations and report. Ms Roberts evidence can be summarised as follows:
(a)the applicant can move around short distances but with limitations and using the wall or furniture as a support;
(b)when outside of her house the applicant used a walking stick as support but that after two or three metres she becomes fatigued and is at risk of falling;
(c)the applicant is at high risk of falls as consequence of passivity and peripheral neuropathy and lack of feeling in her lower limbs;
(d)some practical adjustments to the kitchen would help make things easier regarding meal preparation and access to a dietician would assist with improved nutritional intake;
(e)Ms Roberts observed the applicant as having a slight tremor when reaching things or otherwise when intending to use her hands;
(f)as a consequence of the applicant’s tremors it would be difficult for the applicant to manually manipulate objects or hold objects steady;
(g)the applicant was able to feed the ducks by standing and propping onto a walking stick;
(h)the applicant appears quite self-conscious about her disability and finds making new friends difficult as she is not able to get out of her house often particularly being in amore rural location and also due to her fatigue;
(i)the applicant maintains contact with some friends online and face-to-face catch ups with friends are rare;
(j)the applicant is a very bright woman with a sharp sense of humour but the applicant feels that her disability has impacted her capacity to interact with others;
(k)Ms Roberts reaffirmed her view in relation to recommendations as set out in her written report;
(l)Ms Roberts told the Tribunal that the applicant has been dealing with her impairments for a number of years and that those impairments have been worsening and in combination have impacted her functional capacity significantly. As a consequence the applicant requires tools and supports in order to make the best of her life and support her well-being;
(m)when asked to assess the level of the applicant’s disability and reduced functional capacity Ms Roberts stated that she believed that the applicant’s disability is moderate to significant impairment but fluctuating depending on the circumstances and therefore difficult to assess the longer term;
(n)Ms Roberts gave evidence explaining in further detail the basis of her assessments using various tools of assessment as set out in her written report;
(o)Ms Roberts confirmed that under the abbreviated life skills the applicant was assessed as low functional disability although Ms Roberts indicated that she believed that that particular assessment tool didn’t necessarily bring to the fore the actual functional impact of the applicant’s impairments in the applicant’s particular circumstances;
(p)in cross examination Ms Roberts stated that the WHODAS assessment tool presents “a much broader, more realistic picture. A snapshot, I guess”. Ms Roberts stated that under the WHODAS assessment tool she assessed the applicant as being of moderate disability;
(q)Ms Roberts acknowledged on re-examination that despite an overall assessment of moderate disability she had assessed the applicant as having a high or very high need for assistance with respect to a number of daily activities as set out in her report;
(r)on re-examination Ms Roberts was asked whether there was any particular aspect or function under the WHODAS assessment tool that she believed warranted a “severe” disability assessment. Ms Roberts went through her individual scores in some detail and also provided the Tribunal with a breakdown of the scores. Ms Roberts confirmed that based on her review of her notes that with respect to self-care the applicant was assessed as a 3.5 which would equate to a moderate to severe rating and that life activities was assessed as 4.1 which would equate to severe which addresses issues like undertaking important household tasks and getting your household work done as quickly as needed;
(s)Ms Roberts stated that she considered the WHODAS assessment tool was largely observation based supplemented with self-reporting and then the exercise of her own professional judgement. When pressed further on this issue in cross examination Ms Roberts acknowledged that for a number of the functional assessments she had not actually observed the applicant undertake the function but rather was reaching a conclusion based on the report of the applicant, for example, with respect to self-care items such as taking a bath or getting dressed.
(t)Ms Roberts acknowledged in cross examination that the WHODAS assessment tool did not take account of the applicant’s capacity to be able to drive a car and go to a doctor or do shopping.
(u)when asked by the Tribunal whether based on her observations of the applicant during the course of her assessment that she believed the applicant was exaggerating in any way or not describing accurately her functional impact in response to questions put to her Ms Roberts stated that she did not.
Having considered the evidence before it, the Tribunal is satisfied that as consequence of her impairments the applicant experiences significant pain across her body and, in particular, her lower back, pelvis area and legs, fatigue, low mood, shaky hands, poor memory and difficulty focusing on a task and that the combined effect of these symptoms is that the applicant has a moderately reduced level of function with respect to daily activities of mobility and self-care and, to a lesser extent, self-management.
The Tribunal accepts the applicant’s contention that her levels of pain and fatigue can vary within a day and between days depending on her level of prior exertion. The Tribunal accepts that where the applicant has undertaken a heightened level of activity it can cause her to experience more intense pain and more intense levels of fatigue.
The Tribunal found the applicant to be in a general sense a credible witness. The applicant was engaged through questioning and is clearly very intelligent and articulate. However, the Tribunal does accept the respondent’s contention that there appeared to be some inconsistency and contradiction in the evidence the applicant gave regarding her level of reduced functional capacity as well as the extent to which she can be impacted by prior exertion. For example, when asked whether she was able to move from the chair the applicant was sitting in for the hearing to the kitchen the applicant initially said she could do so with the assistance of her leaning on either a wall or her stepstool for support but later, when question further, conceded that she had “probably” done so without utilising either. Similarly, when asked how far she was capable of walking outside with the use of a walking stick, the applicant responded that she could walk around 30 meters. This was substantially less than the distance she had reported to Ms Opulencia for the purpose of her assessment. Further, when pressed on the point, the applicant conceded that she was able to walk substantially further than 30 meters when undertaking her shopping. Similarly, the applicant had emphasised in various parts of her evidence that she had difficulty utilising her hands for practical tasks involving finer motor skills and yet conceded that she still engaged in photography involving the use of a camera and had also used a cordless drill and an allen key to put together a chair she had purchased from OfficeWorks in the last 12 months. The applicant had also indicated that she is unable to brush her teeth more than once a day due to fatigue and yet gave evidence that she typically drinks a beer in the evening which she is able to get from the fridge and open with the use of either a bottle opener or occasionally a screw top. The Tribunal accepts the respondent’s contention that these examples are representative of an inconsistency in the applicant’s evidence regarding the extent of her impairments and reduced functional capacity.
The Tribunal is satisfied that these inconsistencies are not explained by the fluctuation in the applicant’s pain and energy levels day to day, or her experiencing of good days and bad days. The Tribunal is also satisfied that these examples are not explained by a material decline in the applicant’s impairments and reduced functional capacity since the date of her assessment by Ms Opulencia as the applicant has claimed. Again, the Tribunal is satisfied that the applicant has demonstrated a tendency to overstate the extent of her further decline over more recent years. This is not to suggest that there has not been some decline in the applicant’s condition and an increase in the impact of her impairments over a more extended time frame. However in the Tribunal’s view, the suggestion that there has been a material decline in her condition and intensification in the impact of her impairments since the time of Ms Opulenica’s assessment is not credible and again not consistent with other aspects of the applicant’s evidence, for example, the fact that she still enjoys a beer in the evening, still engages in photography, still drives a manual car, is still able to let the dogs out and feed them, other than for a bad day is still able to feed the ducks and, at some point in the last 12 months was able to purchase a chair, unpack the component parts and put the chair together with the use of a cordless drill and an allen key.
The Tribunal also does not accept Ms Robert’s conclusion that the applicant’s condition has worsened significantly in more recent years again on the basis that it is largely based on the applicant’s own self reporting. The Tribunal does not suggest that the applicant has deliberately intended to embellish her evidence or mislead the Tribunal but it does accept that her self-reporting of her capacity and her change in capacity over time is, in material respects, not reliable. For this reason, the Tribunal has placed less weight on the applicant’s self-assessment of her capacity and greater weight on the assessments of the occupational therapists with respect to the applicant’s functional capacity that are based on their own direct observations of the applicant. In this context the Tribunal accepts the contention of the respondent that, consistent with the Tribunal’s conclusion with respect to the reliability of the applicant’s evidence, any self-reporting by the applicant that was relied on by her assessing occupational therapists must also be treated with some caution.
To the extent that there was inconsistency in opinion expressed regarding the applicant’s functional capacity by treating medical practitioners when compared to conclusions reached by the applicant’s assessing occupational therapists, the Tribunal has preferred the assessments of the occupational therapists given their level of expertise in making such assessments.
As between the occupational therapist’s reports, to the extent of any inconsistency the Tribunal has generally preferred the report of Ms Opulencia given the particularly comprehensive nature of her report. Specifically with respect to Ms Robert’s report and her evidence more generally, it appeared to the Tribunal that Ms Roberts has placed significant weight on both the applicant’s self-reporting as well as the conclusions she has reached utilising various assessment tools. Having considered those tools in some detail, the Tribunal is concerned that a number of the conclusions reached by Ms Roberts appear inconsistent with the Tribunal’s view of the broader evidence. For example, Ms Roberts rating of the applicant applying the WHODAS 2.0 assessment tool as severe in terms of disability associated with remembering important things does not accord with the Tribunal’s own observation of the applicant in her engagement with the Tribunal and her capacity to answer questions and advocate on her own behalf. Similarly, Ms Robert’s assessment of the applicant as severe in terms of disability with respect to eating also does not accord with the Tribunal’s assessment of the broader evidence regarding the applicant’s functional capacity with respect to eating. The applicant herself told the Tribunal that she is able to feed herself and enjoy a beer at the end of the day. In the Tribunal’s view, the inconsistency in Ms Robert’s assessment in these respects raises a question in the Tribunal’s mind regarding the reliability of some Ms Robert’s broader observations.
In relation to mobility the Tribunal is satisfied that:
(a)The applicant has a moderately reduced functional capacity as a consequence of her impairments.
(b)The applicant is generally independent when mobilising around her house albeit it slowly and occasionally with the use of available surfaces and walls as a support.
(c)The applicant is generally independent walking outside of the house with the use of a walking stick up to approximately 80 metres to 100 metres on a good day. The Tribunal accepts that distances beyond this are a struggle for the applicant. The Tribunal accepts that the applicant has additional challenges when attempting to walk on grass or uneven surfaces and that this makes walking down to the bottom of her garden quite difficult.
(d)The applicant can experience impaired balance and fatigue when ambulating which can result in having falls approximately 3 to 4 times per year but that the applicant is able to get back up on her own after a fall.
(e)The applicant can generally perform all of her transfers independently although the Tribunal accepts that the method the applicant utilises in transferring in and out of the bath can be particularly fatiguing.
(f)The applicant is able to drive herself to medical appointments and other activities but accepts that driving particularly long distances can be tiring.
The Tribunal accepts that while it may take longer for the applicant to mobilise, that she requires the use of a walking stick when walking outside and that there are limits on the applicant’s capacity to walk extended distances, she is nonetheless capable of mobilising effectively and completely without assistance and in a safe manner for the purpose of undertaking her general day to day activities. In this respect the Tribunal notes the policy guideline at Guideline 8.3.1 which provides that:
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
The Tribunal does accept that the applicant can have good and bad days and that on bad days the applicant’s experience of impairment can be significantly more intense and her capacity to mobilise can be more substantially compromised. The Tribunal is not satisfied however that the applicant’s capacity on bad days or very bad days is sufficiently reflective of her general experience as to cause it to alter its conclusion as to the applicant’s overall level of reduced functional capacity. In this respect, the Tribunal accepts the respondent’s contention that many of the difficulties the applicant describes in undertaking activities are difficulties that primarily occur on what she describes as her “bad days” or “very bad days”. The Tribunal also accepts the respondent’s contention that caution should be exercised when assessing the extent to which difficulties described by a person occur on a fluctuating or episodic basis. The Tribunal notes the policy guidance in Guideline 8.3.1 that states where a substantially reduced functional capacity to undertake activities occurs on a fluctuating or episodic basis, the decision-maker should consider the impact on the person’s ability to function in the periods between acute episodes. While the Tribunal accepts that in some respects the applicant has experienced what could reasonably be categorised as substantially reduced function in respect of mobilising on her very worst of days, the Tribunal is not satisfied, having regard to the applicant’s capacity in between such extreme episodes, that the applicant can be said to have a substantially reduced function in respect of such activities in an overall sense.
For these reasons, the Tribunal is satisfied that the applicant does not suffer substantially reduced function capacity in respect of mobility for the purpose of section 24(1)(c) of the NDIS Act.
In relation to self-care the Tribunal is satisfied that the applicant suffers a moderate level of reduced functional capacity. More specifically the Tribunal is satisfied that:
(a)The applicant has a moderately reduced functional capacity as a consequence of her impairments.
(b)The Tribunal is satisfied that the applicant is generally independent when undertaking daily activities of self-care including grooming, bathing, toileting, foot care, dressing, shopping, meal preparation, eating and medication management. The Tribunal is satisfied that the applicant is able to undertake simple cleaning tasks independently but accepts that more substantial cleaning tasks require the assistance of her cleaner who attends the house on a weekly basis. The Tribunal is satisfied that the applicant is able to undertake laundry tasks although accepts that she finds it difficult to utilise her outside clothesline. With respect to medication management the Tribunal is satisfied that the applicant can from time to time forget to take some medication but does not accept that this is so prevalent as to be a substantial risk to her safety. The Tribunal accepts that the applicant can be fatigued after undertaking more onerous daily self-care tasks and that she can be slower in completing some tasks and actions but does not accept that the consequence in terms of her additional pain and reduced energy levels is so significant as to support a conclusion that the applicant is not able to undertake the tasks or actions required to participate effectively and completely in her self-care without assistance (other than utilising commonly used items or other practical workarounds and, in the case of more substantial cleaning, the assistance of her community based cleaner).
For these reasons, the Tribunal is not satisfied that the applicant suffers a substantially reduced functional capacity with respect to self-care for the purpose of section 24(1)(c) of the NDIS Act.
The Tribunal is also not satisfied that the applicant has a substantially reduced functional capacity with respect to self-management. The Tribunal is satisfied that the applicant suffers only a low level of reduced functional capacity with respect to self-management but is not satisfied that she is unable to perform tasks or actions required to undertake self-management effectively without assistance. The Tribunal accepts that the applicant has some difficulty concentrating and with memory and word recall. However, based on the assessment of Ms Opulencia, the Tribunal is satisfied that the applicant is capable of self-managing her affairs. Ms Opulencia’s conclusions in this respect are consistent with the Tribunal’s own observation of the applicant over the course of a number of hearing days. The applicant presented to the Tribunal as intelligent, articulate and able to effectively engage with the Tribunal and the representatives of the parties to a high level. By her own acknowledgment the applicant is capable of managing her finances and general affairs, including affairs with the Council, she was clearly very engaged in the preparation of her case for the hearing and able to advocate on her own behalf very effectively.

Having considered the whole of the evidence the Tribunal is not satisfied that the evidence supports a conclusion that the applicant has a substantially reduced functional capacity for any of the activities set out in section 24(1)(c) of the NDIS Act.
For these reasons, the Tribunal is satisfied that the applicant does not meet the disability requirements for the purpose of section 24 of the NDIS Act.
In reaching this conclusion, the Tribunal does not wish to suggest that the applicant is not suffering from significant impairment due to her underlying conditions. The Tribunal accepts that she does. The Tribunal does not wish to diminish the impact of those impairments on the applicant’s quality of life. The Tribunal accepts that the applicant’s circumstances are difficult, in particular, as a consequence of the applicant living alone in a remote location with limited informal supports and with a somewhat reduced capacity to engage socially or otherwise participate in the applicant’s more physical hobbies and interests. It was clear to the Tribunal that the applicant is experiencing a deep level of loneliness and lack of engagement in the world around her and that is particularly difficult for someone who so clearly previously enjoyed a strong sense of independence and a predisposition for social and intellectual engagement. Further, the Tribunal accepts that the applicant could benefit to some degree from the adoption of the recommendations made by Ms Opulencia in her report. However, the Tribunal is not satisfied that the applicant’s functional capacity is presently reduced to such a degree that renders her eligible to receive funding for those supports through the NDIS.
A further issue to be determined by the Tribunal is whether the applicant otherwise satisfies the early intervention requirements in section 25.
The respondent concedes that the applicant’s conditions of fibromyalgia, peripheral neuropathy, chronic lower back pain and pelvic pain and essential tremors meet the impairment and permanency criteria for the purpose of section 25(1)(a) of the NDIS Act. That concession is appropriate. However, the respondent contends that the applicant cannot meet the eligibility requirements for early intervention under section 25 on the basis that the applicant’s impairments are long-standing and chronic and cannot be said to be in the early stage of their trajectory. The respondent contends that any supports the applicant seeks to have funded cannot therefore constitute an “early intervention” for the purpose of section 25(b) or (c) of the NDIS Act. In support of this contention the respondent relies on a number of previous decisions of the Tribunal that address the scope of the section 25 requirements. Those cases include Dyson and NDIA [2022] AATA 3252 where the Tribunal determined that the applicant in that matter did not satisfy the early intervention requirements in section 25 because of the aged nature of the conditions and treatment “which takes the case well away from the expectations of possible benefits through early intervention”. In addition, the respondent relied on CKJW and NDIA [2021] AATA 983 and FBJV and NDIA [2021] AATA 913 where the respective Tribunals were not satisfied of the applicant’s eligibility for early intervention under section 25 on the basis that the applicant’s impairments were aged and not in their “early trajectory”. The respondent also relied on the decision in James and NDIA [2019] AATA 4248 were Deputy President Pascoe stated in respect of the purpose and intent of the early intervention requirements of section 25:
The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the long term. Accordingly, the early intervention requirements look at the likely trajectory and impact of a person’s impairment over time and the potential benefits for early intervention on the impact of the impairment on the person’s functional capacity.
In oral submissions the respondent’s representative appeared to suggest that the early intervention criteria require the existence of a close temporal connection between diagnosis and the application for access to supports under section 25. When pressed further on this point the respondent’s representative appeared to retreat somewhat from this position but nonetheless maintained the contention that the application for access must occur at an early stage of the impairments’ trajectory.
The applicant contends that notwithstanding the aged nature of her diagnosis her impairments are worsening and in that sense the provision of supports at this time is likely to mitigate to some degree the full impact of her impairments on her functional capacity in the future. The applicant contends on that basis she should be viewed as meeting the early intervention requirements for the purpose of section 25. The applicant’s representative rejected the respondent’s contention that an applicant can only meet the criteria for early intervention if an application is made for supports under section 25 in close proximity to a diagnosis of the underlying condition. In addition, the applicant’s representative contended that, in any case, with respect to the applicant’s essential tremors condition, notwithstanding the aged nature of the diagnosis, the condition is degenerative and the impairments the applicant suffers from that condition could still be said to be in their early stage of trajectory sufficient to meet the early intervention criteria in section 25.
Having considered the objects of the legislative scheme as well as the specific wording of section 25 itself, the Tribunal accepts the reasoning of Deputy President Pascoe in James and NDIA as cited above. More specifically, the Tribunal accepts that in order to be satisfied that an applicant meets the requirements in sections 25 (1)(b) and (c) of the NDIS Act, it is necessary for the Tribunal to make an assessment of the likely trajectory and impact of the applicant’s impairment over time and the potential benefits for early intervention on the impact of the impairment on the applicant’s functional capacity.
The Tribunal does not accept the suggestion put by the respondent’s representative that this necessarily requires an assessment in close temporal proximity to a diagnosis, but it does require an assessment at the early stage of an impairment’s trajectory. In this sense, the Tribunal accepts the contention put by the applicant’s representative that in the case of a degenerative condition it may be possible for an applicant to meet the early intervention requirements without a close temporal connection to a diagnosis but where the impairments that flow from the underlying condition can still be said to be at an early stage of their trajectory.
With respect to the applicant’s particular circumstances, the Tribunal accepts the respondent’s contention that the applicant’s underlying conditions fibromyalgia and chronic lower back pain and also pelvic pain are chronic and the applicant’s impairments in connection with those conditions cannot be said to be at an early stage of their trajectory such as to qualify for support under the early intervention provisions.
It is more difficult to reach a conclusion with respect to the applicant’s peripheral neuropathy and essential tremors impairments. It is clear from the limited information before the Tribunal that the applicant has suffered from those conditions for a considerable period of time. The consultation summary record from neurologist Dr Lucie Aldous dated 24 March 2016 makes clear that the applicant’s underlying essential tremors condition predates 2016 and would appear to have been impacting the applicant as early as 2010. Dr Aldous notes that the applicant’s condition is worsening although she also references the potential for medication treatment that could improve the applicant’s symptoms. There are also references in the medical records to the applicant having been prescribed new medication for the management of the condition in around 2020 which appeared to have mitigated the impact of her symptoms to some degree. The medical records would also support a conclusion that the applicant’s peripheral neuropathy condition is not early stage given Dr Patel’s observation in 2019 that the condition has restricted the applicant’s life and will progressively worsen.
In any case, in the Tribunal’s view, there is certainly insufficient independent medical evidence before it to support a conclusion that the applicant’s peripheral neuropathy and essential tremors impairments are at an early stage of their trajectory. There is also insufficient independent medical evidence before the Tribunal to support a finding that the provision of “early intervention supports” for the applicant is “likely to benefit” the applicant by reducing the applicant’s future needs for support in relation to her disability arising from such impairments.
For these reasons, the Tribunal is not satisfied that the applicant meets the early intervention requirements for the purpose of section 25 of the NDIS Act.
DECISION
The decision under review is affirmed.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for the decision herein of

........[sgn]................................................................
Associate
Dated: 21 June 2023

Date(s) of hearing:
28,29,30 September 2022
19 October 2022
9 December 2022

Applicant: Lori Puster and Ms Ogunkoya

Counsel for the Respondent: Mr Wilson of Counsel

Date(s) of hearing:	28,29,30 September 2022 19 October 2022 9 December 2022
Applicant:	Lori Puster and Ms Ogunkoya
Counsel for the Respondent:	Mr Wilson of Counsel