QTDM and National Disability Insurance Agency - [2022] AATA 3826

QTDM and National Disability Insurance Agency [2022] AATA 3826 (15 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/5384
Re:QTDM
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Member W Frost
Date:15 November 2022
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
...................[SGD].........................................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – ankylosing spondylitis – inflammatory bowel disease – asthma - whether the applicant satisfies the disability requirements – whether applicant has a disability attributable to an impairment - whether impairments substantially reduced functional capacity to undertake any one or more specified activities specified in s 24(1)(c) – where no functional assessment provided to the Tribunal – totality of available evidence - decision affirmed
Legislation
Administrative Appeals Tribunal Act, ss 35, 43
National Disability Insurance Scheme Act 2013, ss 3, 18, 20, 22, 23, 25, 28, 33, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
National Disability Insurance Agency v Davis [2022] FCA 1002
Ditchfield and NDIA [2019] AATA 2121
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Madelaine and NDIA [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
Howard and National Disability Insurance Agency [2019] AATA 2
HPSC and National Disability Insurance Agency [2021] AATA 727
Schwass and NDIA [2019] AATA 28
Secondary Materials
Access to the NDIS Operational Guideline
REASONS FOR DECISION
Member W Frost
15 November 2022
INTRODUCTION

The Applicant, QTDM, is 42 years old.[1] In April 2021, QTDM applied to become a participant in the National Disability Insurance Scheme (NDIS) due to the effects of her ankylosing spondylitis (AS), which is a form of arthritis, inflammatory bowel disease (IBD) and asthma.[2]
[1] Exhibit 1, pages 2 and 30.
[2] Ibid., pages 28-52. See also Exhibit 3.
In May 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that QTDM did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[3]
[3] Ibid., pages 53-57.
QTDM requested an internal review by the NDIA[4] and, in July 2021, another delegate of the CEO confirmed its decision that QTDM did not satisfy the access criteria in either sections 24 (containing the disability requirements) or 25 (containing the early intervention requirements) of the NDIS Act.[5] Pursuant to section 103 of the NDIS Act, in August 2021, QTDM applied to the Administrative Appeals Tribunal (Tribunal) for review of the NDIA’s decision.[6]
[4] Ibid., page 60.
[5] Ibid., pages 6-25.
[6] Ibid., pages 1-5.
Due to the personal nature of the symptoms or effects of QTDM’s impairments, the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of her name and any other information tending to reveal QTDM’s identity, including the name of her representative in this proceeding.
ISSUES
The Tribunal must decide whether QTDM meets the ‘access criteria’, set out in section 21 of the NDIS Act, to become a participant in the NDIS. There was no dispute that QTDM meets both the age requirements and the residence requirements, pursuant to sections 22 and 23 of the NDIS Act, which form part of the access criteria under subsections 21(1)(a) and (b) of the NDIS Act. At the hearing, QTDM confirmed that she did not contend she met the ‘early intervention requirements’ in section 25 of the NDIS Act for access to the NDIS.
Accordingly, to satisfy the final relevant element of the access criteria in subsection 21(1)(c) of the NDIS Act, the Tribunal must determine whether QTDM meets the ‘disability requirements’ in section 24 of the NDIS Act. This requires consideration of whether:
(a)QTDM has a disability that is attributable to one or more impairments set out in subsection 24(1)(a) of the NDIS Act;
(b)QTDM’s impairments are, or are likely to be, permanent in accordance with subsection 24(1)(b) of the NDIS Act;
(c)the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the prescribed activities under subsection 24(1)(c) of the NDIS Act;
(d)QTDM’s impairments affect her capacity for social or economic participation pursuant to subsection 24(1)(d) of the NDIS Act; and
(e)QTDM is likely to require support under the NDIS for her lifetime in accordance with subsection 24(1)(e) of the NDIS Act.
LEGISLATION & POLICY
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under section 20 of the NDIS Act, the CEO (or here, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person becomes an NDIS participant on the day it is decided that the person meets the access criteria.
Subsection 21(1) of the NDIS Act provides that a person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The ‘disability requirements’ are set out in section 24 of the NDIS Act 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 to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)       communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)      self-care;
(vi)      self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules).
Additionally, an ‘Access to the NDIS Operational Guideline’(Access Guideline) of the NDIA provides guidance when determining whether a person with a disability meets the access criteria to become a participant of the NDIS. The Access Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is good reason not to do so.[7]
EVIDENCE
[7] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Expert evidence
The Tribunal notes that none of the following experts provided oral testimony in this proceeding.
Associate Professor Mayur Garg – Gastroenterologist
On 17 December 2020, Associate Professor Garg wrote to QTDM’s general practitioner and reported that she ‘has significantly improved since the last appointment with reduction in her bowel frequency to two bowel actions most days following a self initiation of a low-FODMAP diet’.[8] Associate Professor Garg further noted that ‘there is no clear evidence of Crohn’s disease and that it ‘is likely that [QTDM] has been suffering from diarrhoea-predominant irritable bowel syndrome’, although it was noted that there is ‘a family history of IBD’.[9] In August 2021, Associate Professor Garg reported that QTDM had a ‘[n]ormal colonoscopy’ and that there was ‘[p]ossibly Chron’s controlled on IFX. Continue to monitor’.[10]
[8] Exhibit 10, page 38.
[9] Ibid.
[10] Ibid., pages 26 and 41.
Dr Andrew Foote – Rheumatologist
In a report of 13 January 2021, Dr Foote noted that QTDM had reduced spinal mobility, no ‘definite evidence of Chron’s’, but ‘likely D-IBS’ and possible AS.[11]
[11] Exhibit 11.
Dr Laura Ross – Rheumatologist
On 21 April 2021, Dr Ross reported that her impression was that QTDM has AS, which was improving with treatment, in the form of adalimumab, but that QTDM felt ‘overall mobility still impaired, poor balance’, with frequent ‘near falls’.[12] Dr Ross also noted that QTDM’s ‘IBS symptoms improved significantly since starting anti-TNF’ medication.[13]
[12] Exhibit 1, page 27.
[13] Ibid.
On 5 May 2021, Dr Ross reported that QTDM:[14]
suffers from ankylosing spondylitis; an autoimmune, inflammatory arthritis that has affected the joints of her spine and hips, has caused inflammatory bowel symptoms and significant fatigue and impaired mobility. [QTDM] is currently stable, on treatment with adalimumab which will be required life-long and she will need ongoing follow up…
Fatigue is very commonly associated with inflammatory arthritis. As a result of her condition, [QTDM] suffers from daily fatigue that has caused a mild functional impairment. [QTDM] is able to perform most work-related tasks, but requires regular breaks and assistance with any tasks that require manual labour. She is able to perform simple physically active tasks but requires assistance with heavier household activities such as vacuuming the floor.
[QTDM] has lower limb involvement from her ankylosing spondylitis, affecting her hip joints. She has suffered from balance and mobility difficulties due to her diagnosis. She has a mild functional impairment from her inflammatory arthritis in that she is able to walk independently, but has difficulty walking outside of her home and over unknown terrain due to regular trips and falls, is unable to stand for more than 10 minutes and has impaired balance and requires assistance with household activities such as stacking the dishwasher that challenge her balance.
[14] Exhibit 10, page 37.
In July 2021, Dr Ross reported that QTDM had ‘[o]verall improved since starting TNF’ and that her ‘GI symptoms much improved on TNF’, although there was ‘significant wearing off effect of adalimumab in terms of back pain and stiffness after one week’.[15] The stated plan was for QTDM to ‘[s]witch TNF to infliximab’ and be reviewed in three months.[16]
[15] Ibid, page 32.
[16] Ibid.
Dr Gayani Dassanayake – General Practitioner
On 26 April 2021, Dr Dassanayake completed information for QTDM’s NDIS ‘Access Request Form’.[17] Dr Dassanayake stated that QTDM’s ‘main disability’ is multiple severe joint pains with diagnosis of AS with ‘other disabilities’ being ‘chronic diarrhoea with IBS’.[18] Dr Dassanayake further stated that various treatments, such as osteopathy and physiotherapy, had ‘not really helped with her pain and mobility’ and was ‘unsure’ whether there were any ‘available, evidence-based treatments/interventions that are likely to substantially relieve the applicant’s impairment’.[19]
[17] Exhibit 1, pages 40-52.
[18] Ibid.
[19] Ibid, page 42.
Dr Dassanayake outlined how QTDM’s disability substantially impacts her functional capacity in mobility, socialising, self-care and self-management.[20] He said that QTDM is struggling in getting out of bed, showering, getting dressed and moving around the house and that this had ‘stopped her attending a lot of social events’.[21] Showering and toileting were listed in relation to self-care and QTDM’s difficulty with combing her hair and getting dressed. In relation to self-management, Dr Dassanayake said QTDM is ‘struggling with constant tiredness’ and brain fog ‘all the time’.[22]
[20] Ibid., pages 45-46.
[21] Ibid.
[22] Ibid., page 46.
Dr Lana Andalis - Osteopath
On 13 May 2021, Dr Andalis relevantly reported to QTDM’s general practitioner following her second and final consultation under the Medicare chronic disease management plan that:[23]
Today I was interested to understand how [QTDM] is functioning day-to-day with respect to her activities of daily living. [QTDM] informed me she is experiencing considerable mobility restrictions, decreased energy and balance concerns. Such examples include: when getting out of bed she feels restricted and exhausted, she finds it difficult to stand for > 10 minutes without feeling as though she will fall over, reduced energy to shower, struggles to bend over and reach over, walks with a limp, struggles to move around small corners/navigating around people or furniture and decreased ability to walk. Subsequently [QTDM] has found she requires the use of a walking stick to aid with her walking.
…
While conducting a history today, [QTDM] informed me she has experienced the sensation of a L foot drop felt since October 2019 and occurring approximately 1 time every couple of months, subsequently she finds that she knocks her L 2^nd toe and has noticed it has deviated. The patient has also had a history of upper limb and lower limb neurological symptoms (tingling in the fingers a few months ago and the lower limbs feel weaker).
On examination Patella and Achilles reflex appeared difficult to ascertain bilaterally and the patient had difficulty performing heel-to-toe walking (with feeling unstable/balance and LB/SIJ pain). [emphasis in original]
[23] Ibid., pages 58-59.
Dr Lynna Chen – Medical Registrar
On 17 June 2021, Dr Chen reviewed QTDM at the Inflammatory Bowel Disease Telehealth Clinic with Associate Professor Garg for ‘chronic diarrhoea’.[24] She noted that QTDM ‘reports loose bowel actions up to seven times a day’, although QTDM ‘reports improvement in her symptoms, including from a bowel perspective’. Dr Chen further stated that at best, QTDM ‘reports opening her bowels two to three times a day’ and that ‘this is now formed’.[25] The report relevantly continues as follows:[26]
However, [QTDM] reports worsening of symptoms both from a GI [Gastro Intestinal] as well as a joint and skin point of view towards the end of the two-week mark just prior to the next dose of Humira. At this point, [QTDM] states that her bowels become more loose with worsening of her abdominal pain.
…
In the context of [QTDM’s] clinical symptoms as well as improvement with Humira and strong autoimmune family history, [QTDM] likely has a new diagnosis of Chron’s disease.
[24] Exhibit 10, pages 10-11.
[25] Ibid.
[26] Ibid.
Dr Chen also noted that QTDM had been ‘reviewed by our rheumatology colleagues and diagnosed with ankylosing spondylitis’ and started meloxicam daily and Humira ‘two-weekly’.[27]
[27] Ibid.
Dr Rylie Wallace – General Practitioner
On 27 July 2021, Dr Wallace provided a letter of support for QTDM’s application for access to the NDIS.[28] Dr Wallace relevantly stated that she had been treating QTDM over a 12 month period and had ‘witnessed her deterioration and growing impairment during this time as a result of her diagnosed condition of Ankylosing Spondylitis (AS)’ and further reported that:[29]
AS is a permanent degenerative condition for which there is no cure. The degeneration and impairment already experienced by [QTDM] cannot be remedied or undone with any available treatment – all current and future treatments are aimed at reducing further degeneration and impairment. As per the NDIS Becoming a Participant Rules 2016 5.1 (b), I confirm that [QTDM’s] impairment is permanent and she meets this requirement with respect to her eligibility for the NDIS. As a result of her AS, [QTDM] has substantially reduced functional capacity in communication, social interaction, mobility, self-care, and self-management.
With respect to mobility, [QTDM] is unable to effectivly perform tasks such as driving, goign to the toilet, showering, sitting at a desk for work, feeding or walking her dog, driving her children to sports, school and other activities, and many other day-to-day tasks, without assistive technology equipment such as bathroom aids and walking sticks, and relying on the assistance of friends. While [QTDM] would be greatly assisted by additional assistive equipment specifically tuned to her individual needs, her lack of access to the NDIS as of yet has impeded her access to these resources at this time.
…
I would like to clarify that the assistive equipment currently being used by [QTDM] meets the eligibility requirements of the NDIS (Becoming a Participant) Rules 2016 5.8a) which states that “The person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology equipment (other than commonly used items such as glasses) or home modifications”. To reiterate, the items on which [QTDM] has become reliant as a result of her impairment, as a result of her AS, are not commonly used (such as glasses) by most 43 year old women. [QTDM] is unable to mobilise without these items.
Additionally, as a result of her deteriorating condition due to ther AS, [QTDM] has now become reliant on others in order to participate in basic activities – for example, [QTDM] is driven by a friend to her appointments with me due to her being unable to drive herself. This means that she also meets the condition b) of section 5.8 from above” “The person usually requires assistance (indlucing 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”.
Under both of these sections, 5.8 a) and b), [QTDM] undoubtedly has a substantial reduction in functional capacity and she meets this requirement with respect to her eligibility for the NDIS. [errors in original]
[28] Exhibit 1, pages 62-63.
[29] Ibid.

On 5 August 2022, in advance of the Tribunal hearing, Dr Wallace provided a further letter which relevantly stated that:[30]
This is to provide an updated on [QTDM’s] progress, or lack there of, over the last 12 months. Her treatment for ankolysing spondylitis (AS) was changed to infliximab infusions and methotrexate on August 10 2021. Her initial infliximab treatments were loading doses and, naturally, provided a greater reduction in symptoms for a short time compared to her current maintenance dose. I understand [QTDM] saw Mr Gerald Quan on September 2 2021 which was during the short time she felt some improvement due to the loading infliximab doses. Unfortunately, she has regressed and worsened over the time since and has not returned to that level of function.
Currently, [QTDM] reports she requires the use of railings on stairs, has a reduction in mobility (particularly compared to September 2021) and is unable to mobilise 100m, she is very unsteady on her feet and notably has increased stiffness and lower back pain. In December 2021, she even required the use of opioid medication to manage this pain.
There is documentation from the Northern Hospital clinics supporting the ongoing mobility and back pain issues. In November 2021 and May 2022, she was reviewed at these clinics and they have commented on her back and mobility issues.
I understand she had a CT guided L4/5 localised epidural cortisone injection on March 18 2022. She has had no change or improvement in her pain or mobility since this intervention. [errors in original]
[30] Exhibit 6.
Dr Gerald Quan – Spinal and Orthopaedic Surgeon
On 2 September 2021, Dr Quan provided a letter to Dr Wallace, following an in-person review of QTDM on the same date, which relevantly stated that:[31]
As you are aware, she is a 43 year old woman who has been troubled by long standing back issues stemming so many years. She has always been able to maintain this with her own little tricks but she has found herself increasingly struggling during the course of this year. This is because of that chronic progressive low back pain that also refers down her left leg. Dysesthesia and paraesthesia can affect her shin, posterolateral calf and dorsum of that left foot. It does seem quite in keeping with the left L4 and L5 dermatomal distributions. Because of this she has lost a lot of confidence in her leg and generally uses a walking stick for support. Up until a couple of weeks ago she was really struggling with her pain levels and walking, hence the referral to see me.
Coinciding with all of this is that she has been diagnosed with ankylosing spondylitis under the expert care of rheumatologist Andrew Foote and recently her medications have been adjusted, with profound clinical benefit. Her pain levels are much better as is her mobility. Her husband [sic] says she is completely turned around to [sic] compared to what she was like a few weeks back. She can presently walk up to 20 minutes at a time, after which the left leg seems to hold her back. I note that you have mentioned a ? left foot drop, and indeed sometimes she feels “weak” on that side but today on screening neurological examination from a motor perspective was quite normal.
She has had a CT scan of her lumbar spine to look at all of this a year ago…I do agree with the radiologist that this is showing degenerative change (lumbar spondylosis) particularly affecting the L3/4 and L4/5 levels. There are broad based associated degenerative disc protrusions here causing mild lateral recess narrowing…
With the recent turnaround and spontaneous improvement in her symptoms there is no reason why she shouldn’t take advantage of this by linking by [sic] in with her local supervising physiotherapist/exercise physiologist to concentrate on getting her health and fitness back up with a formal and proactive back program. She should also work on consolidating her walking and endurance and I think she is starting to realise the importance of trying to keep her weight down.
She has got a long way to go with this and if it is not enough to get her over the link back to status quo, she could go on to get an MRI of her lumbar spine and consider a localised L4/5 epidural cortisone injection but it is best to start with simpler options first and she is in agreeance with this plan.
…if she has ongoing deterioration of symptoms then I would be more than happy to review her at any time for further assessment and discussion.
Lay Evidence
[31] Exhibit 10, page 28.
QTDM
QTDM made a Statement of Lived Experience in June 2022 for this proceeding, which the Tribunal has considered in preparing these reasons and is set out below for completeness:[32]
[32] Exhibit 2.
I have a number of medical conditions that cause my disability. Primarily, ankylosing spondylitis (AS), and in addition Inflammatory Bowel Disease (IBD) and asthma. These are all inflammatory disorders which cause me chronic pain and fatigue, and mechanically affect my mobility. AS is a degenerative arthritic condition which has increasingly impaired my mobility and ability to perform everyday activities to a significant degree. For example, I have had a career in international aid and development, requiring me to undertake significant amounts of travel, often long haul international and domestic flights, and long haul driving. This has become increasingly difficult to do as my AS has degenerated and I recently quit my job and am changing career direction, as I am no longer physically able to sit in airplane or car seats significant amounts of time, or to travel independently and navigate long walks through airports, long sitting times at desks or during meetings, long standing times conducting workshops, and so on. I currently have multiple herniated discs in my spine, my muscles constantly spasm and tighten, I have a foot drop on the left side due to a pinched nerve in my spine causing me to fall when I walk and move, my hips and other joints seize up; and am on high dose and last line medication to treat these pain and inflammatory symptoms of AS well as issues related to IBD that include constant pain, diarrhoea, constipation, anal fissures, haemorrhoids, cramping and incontinence. I have gone from being full time employed to a period of unemployment with no income and now taking on part time work in a completely different career path and on significantly less salary (less than half of immediate previous salary), which has impacted my social, mental/emotional and financial wellbeing.
My foot drop and other mobility issues (stiffness in spine and joints) recently caused me to break my foot – a clean break. This is the third fracture in this foot this year, all due to falls as a result of mobility issues just walking around the house and doing everyday things. Once was getting out of the shower over the shower step, another was trying to navigate through a doorway, and another time was trying to get laundry out of the washing machine and into the dryer.
My disability has worsened so much so over the last 1 to 2 year period that I am unable to stack and unstack the dishwasher, do the laundry, make my bed, shower or toilet competently. At times I soil myself due to IBD & AS flare, usually first thing in the morning or during the night, because I can’t get out of bed, walk to the toilet or sit on it with ease, and then I have to crawl to the shower to wash myself off. Other times I have to shower after defecating as I am unable to competently wipe my backside if at all.
AS being a degenerative condition means that my current disability will not improve even with medical and/or physical treatment, and so I need assistive aids now and know I will need more and different assistive aids in the future as the condition degenerates and my disability is further impacted. I use whatever is available to assist my mobility currently – walking sticks, I’m currently on crutches and have orthotic shoe due to third foot break this year, public ramps & rails, and so on.
I am unable to drive independently right now and this has been the case for some time due to mobility issues and disability. I am currently driven to my medical appointments.
I find it difficult to walk, particularly in tight spaces, around corners, in carparks, around the house, in public spaces such as shopping strips and malls, clinics, etc, and it is normally impossible for longer than 100m at a time. Prior to my disability in the recent past, I would walk 2 hours a day (up until approx. 18 mths ago), and before that I was a regular runner and competent hiker for fitness and played ball sports (netball and before that basketball). I am unable to run at all due to impact on my spine and danger of falls. I am also unable to participate in contact sports for this reason.
I have a Samoyed dog who requires regular daily light grooming and monthly heavy grooming. I am now unable to do this independently.
On days when my foot drop is bad or when I have significant stiffness, pain and exhaustion, I am unable to shower and dress myself and so I forego doing these things. I wash my hair less often than I did a year ago. My personal grooming has been significantly impacted by mobility function.
I am unable to participate in my children’s extra curricula activities. I used to be the team manager for my son’s basketball team, but can no longer do this due to mobility issues. I can no longer assist the team and coach with training sessions or drive my son to games.
My conditions of AS, IBD and asthma are permanent and AS is degenerative, even with the last line medical treatments which I am already receiving. There will be flares that worsen the conditions and mechanical damage and impairments already existing. Even if these flares were minimal, I already am significantly impacted by mobility issues and disability. I am therefore likely to need support for my lifetime from now, and the need and type of supports will increase over time as the condition/s degenerate and disability progresses.
QTDM gave evidence to the Tribunal by video and confirmed the accuracy of her Statement of Lived Experience as at the date it was made. In this regard, QTDM referred to her very recent hearing loss and tinnitus as a result of her AS and its degenerative nature. QTDM’s Statement of Lived Experience and her evidence to the Tribunal at the hearing has been considered in making this decision. The Tribunal also notes that QTDM was represented in this proceeding by her housemate, known as Mr K given the confidentiality order made by the Tribunal, and he also supported QTDM in her evidence and attested to QTDM’s impairments.
CONTENTIONS
QTDM
QTDM submitted that, pursuant to subsection 24(1)(b) of the NDIS Act, her impairments are, or are likely to be, permanent, in that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy them. In relation to subsection 24(1)(c) of the NDIS Act, it was contended that QTDM’s impairments result in substantially reduced functional capacity to undertake the prescribed activities. Additionally, in relation to subsection 24(1)(e) of the NDIS Act, QTDM submitted that she is likely to require support under the NDIS for her lifetime due to the permanency of her impairments.
NDIA
The NDIA accepted that QTDM has a disability attributable to her physical impairment of AS and therefore satisfied subsection 24(1)(a) of the NDIS Act, although it submitted that there was insufficient evidence to conclude that QTDM’s asthma and IBD met this criterion. The NDIA further contended that on the available evidence QTDM’s AS could not be considered ‘permanent’ and she could therefore not satisfy subsection 24(1)(b) of the NDIS Act. Additionally, while the NDIA accepted that, due to her AS, QTDM has some reduced functional capacity, it submitted that there was insufficient evidence to demonstrate that QTDM has a substantially reduced functional capacity in one or more of the activities set out under subsection 24(1)(c) of the NDIS Act. Given the above contentions, the NDIA submitted that it could not be found that QTDM requires the support of the NDIA for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.
CONSIDERATION
Does QTDM have a disability attributable to one or more impairments?
The Tribunal must be satisfied that QTDM meets all the requirements specified in subsections 24(1)(a) to (e) of the NDIS Act in order to find that she meets the ‘disability requirements’ for access to the NDIS.[33]
[33] Howard and National Disability Insurance Agency [2019] AATA 2 at [25].
The Tribunal is satisfied, and the NDIA did not dispute, that QTDM’s ankylosing spondylitis, or AS, meets the criterion in subsection 24(1)(a) of the NDIS Act, being that she has a disability attributable to this physical impairment. QTDM’s AS causes her to experience, among other things, chronic pain, fatigue and reduced mobility.
The Tribunal also accepts, based on the evidence set out above in these reasons, that QTDM’s IBD meets the legislative requirement in subsection 24(1)(a) of the NDIS Act. While the medical documentation did not provide a clear or settled diagnosis in relation to QTDM’s gastrointestinal issues, IBD appeared the most likely diagnosis based on the totality of the evidence, including QTDM’s testimony. QTDM described her impairments as a result of this disability and the Tribunal accepts this evidence for the purpose of subsection 24(1)(a) of the NDIS Act.
However, while the Tribunal is satisfied that QTDM has asthma, having regard to all the evidence, the Tribunal was left in a state of uncertainty about its impact on her daily life, including whether it was attributable to one or more impairments. To this end, there was a distinct lack of medical evidence about QTDM’s asthma, with the only identifiable reference being the rheumatologist, Dr Ross’ notation that it ‘[c]ame back as an adult after SARS in 2003’ and that she currently takes asthma medication.[34] While not discounting the effect of this condition, based on the available evidence, the Tribunal finds that QTDM’s asthma is not a disability attributable to one or more impairments as required by subsection 24(1)(a) of the NDIS Act.
[34] Exhibit 1, page 26.
For the avoidance of doubt, and to the extent that they are separate to the above conditions or impairments, the Tribunal does not consider in these reasons QTDM’s back pain, sleep apnoea or any spinal stenosis, foot drop or mental health condition. In short, the Tribunal finds that there was insufficient medical evidence to satisfy either or both subsections 24(1)(a) or (b) of the NDIS Act or they were otherwise not pressed by QTDM in her application before the Tribunal, noting also that they did not form part of her access request to the NDIA.
Are QTDM’s impairments permanent?
A person meets the disability requirement criterion under subsection 24(1)(b) of the NDIS Act if the ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the NDIS Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Access Guideline provides the following guidance for assessing permanency:
8.2 When is an impairment permanent or likely to be permanent?
The NDIA must be satisfied that a prospective participant's impairment/s are, or are likely to be, permanent (i.e. likely to be lifelong) (section 24(1)(b)).
The following principles provide guidance:
·an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy (i.e. cure or substantially relieve) the impairment (rule 5.4 of the Becoming a Participant Rules);
·an impairment that varies in intensity (for example, because the impairment is of a chronic episodic nature) may be permanent despite the variation (section 24(2));
·an impairment may be permanent notwithstanding that the severity of its impact on the functional impact of the person may fluctuate or potentially improve (rule 5.5 of the Becoming a Participant Rules);
·an impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its likely permanency to be demonstrated (rule 5.6 of the Becoming a Participant Rules).
·In this context, an impairment may be permanent notwithstanding that it may continue to be treated and reviewed after its permanency, or likely permanency, has been medically demonstrated; and
·if an impairment is of a degenerative nature, the impairment is, or is likely to be permanent if medical or other treatment would not, or would be unlikely to improve the condition (rule 5.7 of the Becoming a Participant Rules).
If a prospective participant has multiple impairments, the NDIA will consider each impairment separately and determine whether each impairment is, or is likely to be permanent. However, the NDIA only needs to be satisfied that at least one of a prospective participant's impairments are, or are likely to be permanent.
Where there is a possibility of medical treatment (such as surgery) to treat the prospective participant's condition, and the treatment has some prospect of success, the NDIA should not conclude that the impairment is permanent but should wait until the outcome of the treatment is known (Mulligan and NDIA [2015] AATA 974 at [71]). [emphasis in original]
While there was limited evidence before the Tribunal regarding any further available and appropriate evidence based treatments that would be likely to ‘remedy’ QTDM’s AS, which, pursuant to National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [136], should be understood to mean ‘something approaching a removal or cure of the impairment’, the Tribunal accepts that the weight of evidence set out in this decision supports a finding that the permanency criterion is met under subsection 24(1)(b) of the NDIS Act.
On the available medical evidence, QTDM was diagnosed with AS in or around April 2021 by the rheumatologist, Dr Ross, who also listed the current and ongoing treatment required for this condition. In her evidence to the Tribunal, QTDM said that she continues to be managed for her AS by rheumatologists and her treatment and medication had recently changed. She was unable to expand on her comment in the Statement of Lived Experience that she is on ‘last line medication’, but said that she is unaware of any other treatments. QTDM’s general practitioner, Dr Wallace, referred to QTDM’s diagnosed condition of AS and it being a permanent condition with no cure. Regrettably, the Tribunal did not have the benefit of oral evidence at the hearing from any medical practitioner or other expert in relation to QTDM’s AS, or any other impairment or condition. Despite the lack of recent specialist medical evidence regarding the treatment and prognosis of QTDM’s AS, based on the available evidence, the Tribunal accepts that QTDM’s AS is, or is likely to be, permanent pursuant to subsection 24(1)(b) of the NDIS Act.

Similarly, the Tribunal finds, on the available evidence, that QTDM’s IBD is permanent and therefore meets the criterion under subsection 24(1)(b) of the NDIS Act. As set out above in these reasons, under the Rules, an impairment is permanent ‘only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’. While there was no direct medical evidence before the Tribunal regarding the permanence of QTDM’s IBD, in December 2020, Associate Professor Garg noted that ‘there is no clear evidence of Crohn’s disease and that it ‘is likely that [QTDM] has been suffering from diarrhoea-predominant irritable bowel syndrome’, and it was noted that there is ‘a family history of IBD’.[35] In January 2021, the rheumatologist, Dr Foote noted that QTDM had reduced spinal mobility, no ‘definite evidence of Crohn’s’, but ‘likely D-IBS’.[36] In June 2021, QTDM attended an Emergency Department with ‘PR bleeding’.[37] The consultation notes from this presentation refer to QTDM’s long standing history of ‘[l]oose bowel actions and abdo pain being investigated by Gastro team (known to Prof Garg and Dr Lynna Chen at TNH – last seen in OP IBD clinic on 17/6/21)’ and stated that it was ‘[l]ikely IBD ?Chron’s [sic] and strong family history of IBD’, comprising ‘father Chron’s [sic], sister UC, sister ULE, cousins JIA’.[38] The notes also detailed the gastrointestinal issues leading to QTDM’s hospital attendance.[39] In July 2021, the rheumatologist, Dr Ross, referred to QTDM having ‘clinically suspected IBD’, having been seen by a gastroenterologists, and to ‘diarrhoea predominant IBS’.[40] In August 2021, Associate Professor Garg reported that QTDM had a ‘[n]ormal colonoscopy’ and that was ‘[p]ossibly Chron’s [sic] controlled on IFX’.[41]
[35] Ibid.
[36] Exhibit 11.
[37] Exhibit 10, page 29.
[38] Ibid.
[39] Ibid.
[40] Ibid., page 31.
[41] Ibid., pages 26 and 41.
The evidence suggested that this impairment was relatively well managed with medication to what had previously been occurring, although QTDM still undoubtedly experiences the effects of this impairment. In April 2021, the rheumatologist, Dr Ross noted that QTDM’s ‘IBS symptoms improved significantly since starting anti-TNF’ medication.[42] The next month, Dr Ross reported that QTDM’s AS ‘has caused inflammatory bowel symptoms’.[43] However, in July 2021, Dr Ross recommended QTDM switch from TNF medication to infliximab and be reviewed in three months, despite noting her ‘GI symptoms’ were ‘much improved on TNF’.[44] Associate Professor Garg in August 2021 reported that QTDM’s possible Crohn’s disease was ‘controlled on IFX’.[45]
[42] Ibid.
[43] Ibid., page 37.
[44] Ibid., page 32.
[45] Ibid., pages 26 and 41.
Having regard to the above, there was no evidence, from appropriately qualified professionals, that there are known, available, and appropriate evidence-based clinical, medical, or other treatments that would ‘remedy’ QTDM’s IBD which, pursuant to Davis at [136], is to be understood to mean ‘something approaching a removal or cure of the impairment’. The evidence suggests that QTDM’s IBD will not be removed or cured by treatment, but rather managed indefinitely.
In this regard, QTDM undoubtedly has an impairment due to her gastrointestinal issues, identified as IBD, and the Tribunal accepts, on the evidence, that this impairment is, or is likely to be, permanent as required under subsection 24(1)(b) of the NDIS Act. As the Tribunal said in Schwass and NDIA [2019] AATA 28 at [45], it ‘must be positively satisfied on the evidence’ that the disability requirement that a person’s impairment being permanent is met. For the foregoing reasons, based on the available evidence, the Tribunal is satisfied that QTDM’s AS and IBD are permanent within the meaning of subsection 24(1)(b) of the NDIS Act.
Does QTDM have a substantially reduced functional capacity?
The Tribunal turns to consider the subsequent disability requirement criterion being whether, under subsection 24(1)(c) of the NDIS Act, QTDM’s impairments result in a substantially reduced functional capacity for her to undertake one or more of the activities specified in subparagraphs (i) to (vi), being: communication; social interaction; learning; mobility; self-care; or self-management.
The Rules provide the following guidance on when an impairment results in ‘substantially reduced functional capacity’ to undertake relevant activities:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Further guidance in relation to determining when an impairment results in substantially reduced functional capacity is set out in the Access Guideline, as follows:
8.3 Substantially reduced functional capacity to undertake relevant activities
The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).
The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:
·Communication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;
·Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;
·Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
·Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;
·Self-care: means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
·Self-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]).
The NDIA will not need to consider whether a prospective participant's impairment results in substantially reduced functional capacity in relation to all of the relevant activities for every access request.
It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67).
Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant. For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition.
8.3.1 When does an impairment result in substantially reduced functional capacity to undertake activities?
An impairment results in substantially reduced functional capacity to perform one or more activities when:
·the person is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); or
·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 (rule 5.8(b) of the Becoming a Participant Rules); or
·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 (rule 5.8(c) of the Becoming a Participant Rules).
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes. [emphasis in original]
The following observations of Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) are instructive in setting out what is required in assessing what a person can and cannot do given their impairment or impairments and whether they meet the disability requirements for access to the NDIS:[46]
Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities…) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled…
…
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
That being the case, no arbitrary limits are placed on access to the NDIS. No decision maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
[46] Mulligan at [52]; and [55]-[56].
In Ditchfield and NDIA [2019] AATA 2121 (Ditchfield) the Tribunal stated that, in accordance with Mulligan, it should not confine consideration of whether a prospective NDIS participant has met the disability requirement under subsection 24(1)(c) of the NDIS Act by considering their circumstances only through the prism of paragraph 5.8 of the Rules. In this regard, Justice Mortimer in Mulligan observed that:[47]
the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
[47] Ibid., at [77].
As set out above in these reasons, paragraph 8.3.1 of the Access Guideline provides that an impairment results in substantially reduced functional capacity when the person ‘is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications’. The Tribunal in Ditchfield discussed the meanings of ‘effectively or completely’ in paragraph 5.8 of the Rules and noted that they should be given their ordinary and natural meaning.[48] The Tribunal continued as follows:[49]
The Macquarie Dictionary Online defines “effective” as meaning “serving to effect the purpose; producing the intended or expected result” and “complete” as “having all its parts or elements; whole; entire; full”.
[48] Ibid., at [138].
[49] Ibid., at [139].
For completeness, the Tribunal notes that there was no evidence in this proceeding that QTDM was unable to effectively or completely participate in any activity, or to perform tasks or actions required to undertake or participate effectively or completely in any activity, without assistive technology, equipment (other than commonly used items) or home modifications. The Tribunal is satisfied, on the evidence, that QTDM can effectively participate in all relevant activities without these adjustments and therefore does not have a substantially reduced functional capacity to do so.
The difficulty faced by the Tribunal in assessing whether QTDM’s impairments result in a substantially reduced functional capacity in relation to the relevant activities set out under subsection 24(1)(c) of the NDIS Act is that it did not have ‘a detailed functional assessment’ of what QTDM can and cannot do, that was said in Mulligan to be ‘so important’ in determining a person’s functional capacity. To this end, in reviewing a decision to refuse a person access to the NDIS, the Tribunal ordinarily has before it in evidence at least one recent comprehensive assessment undertaken by an occupational therapist, or similar professional, of that person’s functional capacity for the purpose of its review. Regrettably, that was not the case in this proceeding; there was no evidence from an occupational therapist, or any other medical practitioner, of a recent formal functional assessment of QTDM and specifically about what she can and cannot do. QTDM did not file any evidence from an occupational therapist regarding her functional capacity, despite her stated efforts to arrange such an assessment. Additionally, none of the medical practitioners that have treated or assessed QTDM gave evidence at the hearing and their documentary evidence was therefore unable to be tested in cross-examination or by the Tribunal.
As a result, and having considered the available evidence, the Tribunal is not satisfied that QTDM has the requisite substantially reduced functional capacity to meet the requirement of subsection 24(1)(c) of the NDIS Act. As set out in the Access Guideline, the NDIA, or here the Tribunal, is ‘required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity’ to undertake one or more of the relevant activities set out in subsection 24(1)(c) of the NDIS Act. For the reasons that follow, based on the evidence, the Tribunal is not satisfied that QTDM’s impairments result in substantially reduced functional capacity to undertake any of the activities set out in subsection 24(1)(c) of the NDIS Act, being communication, social interaction, learning, mobility, self-care and self-management.
Mobility
As previously set out in these reasons, QTDM’s Statement of Lived Experience detailed her mobility issues, including recent broken foot bones and falls.[50] QTDM referred to having difficulty getting in and out of the shower or bath. She washes her hair approximately weekly, but reported having to crawl to the shower on bad days or around the house later in the afternoon after having been sitting during the day. QTDM also told the Tribunal that some days she cannot leave her bed and uses wet wipes to clean herself. QTDM told the Tribunal that she has altered the type of clothing she wears to be able to dress herself and that she can move about the house, although she has difficulty standing and sitting for long periods of time. The evidence about QTDM’s ability to drive was equivocal. It was reported in hospital admission notes that she could not drive due to foot pain, which QTDM acknowledged, but she also stated that her inability was related to a multitude of issues which persist, including being unable to sit for 20 minutes to travel to a medical appointment. QTDM referred to being unable to drive, which is impacted by her difficulty planning to do so, and this was subject to her functional capacity on a particular day. In this regard, QTDM said that she had not driven in the week before the Tribunal hearing, but may be capable of driving after taking medication.
[50] Exhibit 2.

In relation to mobility, the Access Guideline states that this activity includes ‘the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs’. The Tribunal accepts that QTDM has reduced functional capacity to mobilise, however noting again the lack of a formal functional assessment of QTDM, the totality of the available evidence demonstrates that her impairments do not result in a substantially reduced functional capacity in undertaking this activity.
As the Tribunal said in Madelaine and NDIA [2020] AATA 4025 (Madelaine) at [104]-[106]:
the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.
The use of the phrase move around…to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ.
As a result of there being no functional assessment of what QTDM can and cannot do in the form of an occupational therapist report in this proceeding, the Tribunal’s consideration and findings regarding QTDM’s mobility are necessarily confined to the documentary evidence presented on behalf of QTDM and her own evidence to the Tribunal. As referred to above in this decision, the rheumatologist, Dr Ross, in May 2021 reported that QTDM ‘has a mild functional impairment’, she is ‘able to walk independently’, but has ‘difficulty’ walking outside of her home and over unknown terrain due to regular trips and falls.[51] Dr Ross also stated that QTDM is ‘unable to stand for more than 10 minutes and has impaired balance’ and requires assistance with household activities such as stacking the dishwasher that ‘challenge her balance’.[52] There was no evidence that Dr Ross performed a functional assessment of what QTDM can and cannot do, including in relation to her mobility.
[51] Exhibit 10, page 37.
[52] Ibid.
Also in May 2021, the osteopath, Ms Andalis, recorded that QTDM informed her that she was ‘experiencing considerable mobility restrictions’, including when getting out of bed, finding it difficult to stand for more than 10 minutes, reduced energy to shower, struggling to bend over and reach, walking with a limp, struggling to move around small corners/navigating around people or furniture and a decreased ability to walk.[53] Ms Andalis also recorded that QTDM had required the use of a walking stick to assist with her walking.
[53] Exhibit 1, pages 58-59.
The following month, QTDM presented to hospital due to her IBD. The accompanying consultation notes from 28 June 2021 refer to QTDM’s history and ‘[p]remorbid Function, including that she ‘[m]obilises independently or with 1 pointed stick (currently using stick)’ and that she is currently ‘unable to drive to due right foot pain’, noting that QTDM in her evidence to the Tribunal rejected the proposition that these notes categorically state that this pain was the sole reason for her inability to drive.[54] QTDM was also assessed by an occupational therapist after a hospital admission. The notes from the occupational therapist indicate that QTDM was independent in her mobility and transfers, such as moving from a seated position to standing, ambulating without an aid for approximately ‘15m’ and toileting with bilateral rails.[55] It also recorded that QTDM did not raise any concerns regarding ‘managing at home’. The accompanying occupational therapy assessment form from June 2021 noted that QTDM was independent in her functional mobility and transfers in relation to chairs, toilet, bed, and shower/bath.[56] The assessment further noted that QTDM was independent in her indoor and outdoor mobility, having endurance of approximately ‘100m’, although she ‘sometimes’ used a single point walking stick.[57] QTDM was also reported as being independent in feeding, toileting, bathing, dressing, grooming, meal preparation, laundry, using the telephone and driving, although the latter had been decreased due to ‘brain fog’ and ‘foot pain’.[58] At the hearing, QTDM told the Tribunal that this assessment occurred while she was lying on a hospital bed and there was no functional assessment undertaken by the occupational therapist of what activities she could perform, including walking 100 metres. A note from a physiotherapist following a phone review with QTDM in July 2021 records that QTDM was independent with activities of daily living, has ‘difficulty driving secondary’ to right foot pain, was independent without aids, but was recently ambulating with a single point walking stick, which provided her with support and confidence to mobilise.[59] QTDM told the Tribunal that these notes were compiled following a ‘brief’ phone consultation with her and reference to the hospital’s records; there was no functional assessment performed. It was contended that QTDM’s answers at the time regarding functionality were not representative of the impact of her impairments, including because of the variability of their effects and her focus at the time on the issue for which she presented to hospital, which was not in relation to her functional capacity.
[54] Exhibit 10, page 29.
[55] Ibid., pages 43-44.
[56] Ibid., page 46.
[57] Ibid.
[58] Ibid.
[59] Ibid., page 45.
A pre-admission questionnaire from Northern Health dated 26 August 2021, records that QTDM can take care of herself in relation to feeding, dressing and bathing, she can walk around indoors, walk a block or two on level ground, climb a flight of stairs or walk up a hill without stopping, do light duties around the house, such as vacuuming, sweeping and carrying groceries, participate in moderate intensity recreational activities, but that she could not run a short distance, do moderate intensity work around the house or do yard work.[60] Additionally, Dr Nota recorded that in August 2021, QTDM was ‘moving well, mobilising sans [without] SPS [single point stick]’ and in September 2021, QTDM was recorded as ‘mobilising realy [sic] well independently, she has had a significant reduction in her Sx [symptoms]’.[61] QTDM told the Tribunal that her functionality was improved around this time due to a recent steroid injection and that the effects of her impairments are variable.
[60] Ibid., page 40.
[61] Ibid., pages 21-22.
In September 2021, the orthopaedic surgeon, Dr Quan reported that QTDM could ‘presently walk up to 20 minutes at a time’ following an improvement in her symptoms, although her leg ‘seems to hold her back’ after this amount of time.[62] Although QTDM submitted that she had a walking capacity of zero metres, in her evidence to the Tribunal she stated that there were periods where she was ‘unable to walk’ and this continues, but that she may have told Dr Quan that she had a walking capacity of 20 metres, not the reported 20 minutes. QTDM was referred at the hearing to her Statement of Lived Experience, in which she said that walking is ‘normally impossible for longer than 100m at a time’ and asked whether 100 metres was the limit of her ability to walk. She disagreed and told the Tribunal that this distance was an ‘estimate’, but did not suggest that she can walk this far every day because ‘it gets worse and worse’ and she ‘wouldn’t even know’ how far she can walk.
[62] Ibid., page 28.
QTDM relied on the evidence of her general practitioner, Dr Wallace, in support of her application to the Tribunal. As previously set out in this decision, Dr Wallace’s letter from July 2021 states that QTDM is ‘unable to effectively perform tasks’ with respect to mobility ‘without assistive technology equipment such as bathroom aids and walking sticks, and relying on the assistance of friends’.[63] Dr Wallace’s most recent letter from August 2022, states that QTDM ‘reports she requires the use of railings on stairs, has a reduction in mobility (particularly compared to September 2021) and is unable to mobilise 100m, she is very unsteady on her feet and notably has increased stiffness and lower back pain’.[64] This report indicates that Dr Wallace relied, at least in part, on the testimony or history provided to her by QTDM and that she did not conduct a functional assessment of QTDM in making this statement, noting that it is not suggested Dr Wallace would do so in her role as QTDM’s general practitioner. Having regard to Dr Wallace’s reports, together with QTDM’s evidence and the available medical evidence, the Tribunal is not satisfied that QTDM has a substantially reduced functional capacity in one or more of the activities pursuant to subsection 24(1)(c) of the NDIS Act. In this regard, apart from the activity of mobility, Dr Wallace does not elaborate on her statement that, as a result of QTDM’s AS, she ‘has substantially reduced functional capacity in communication, social interaction, mobility, self-care, and self-management’.[65] While acknowledging the direct evidence from QTDM in relation to her impairments and its stated impact on her functionality, the Tribunal did not have the benefit of a recent, formal functional assessment of what QTDM can and cannot do in order to assist in its decision-making. The weight of available medical evidence set out in this decision does not support the submission that QTDM has a substantially reduced functional capacity in any of the activities under subsection 24(1)(c) of the NDIS Act.
[63] Exhibit 1, page 62.
[64] Exhibit 6.
[65] Exhibit 1, page 62.
QTDM told the Tribunal at the hearing that her mobility is ‘changing’ and, while walking, she ‘recently fell over for no reason’ while rounding a corner from the hallway into the laundry and broke her foot, which had previously twice been fractured in approximately the last year. She is ‘hobbling all the time’ and ‘walking with a walking stick’ because her spine is ‘compressing a nerve’ on her left side and she has a ‘foot drop’. QTDM told the Tribunal she cannot walk around carparks or supermarkets, which a normal, able-bodied person would take for granted, and she cannot navigate around corners. As a result, QTDM’s ‘gait has changed’ and she has been told she will never run again and cannot participate in her beloved contact sports. She described this loss of mobility as being ‘very substantial’ given the situation she enjoyed previously in her life. QTDM confirmed that there was no link between her recently diagnosed hearing loss and her balance. QTDM also told the Tribunal that she finds it ‘really difficult’ to stand for 10 minutes or sit for ‘extended periods of time’ due to multiple herniated discs in her spine.
As set out above, the Tribunal stated in Madelaine that the requirements to demonstrate functional capacity in the activity of mobility are relatively modest and, on the available evidence, the Tribunal is satisfied that QTDM meets those thresholds. In this regard, applying the principles enunciated in Madelaine to this proceeding, the evidence indicates that QTDM has the capacity to do the things outlined in the Access Guideline in relation to mobility, albeit at times with difficulty. In this way, although QTDM uses a commonly used item such as a walking stick and occasionally requires assistance undertaking this activity, she does not ‘usually’ require assistance from other people and does not meet the requirements of clause 5.8 of the Rules.
The evidence before the Tribunal on the issue of QTDM’s capacity to mobilise, as with the other activities to be considered under subsection 24(1)(c) of the NDIS, was unsatisfactory and incomplete. As previously stated in this decision, the Tribunal did not have the benefit of any recent, formal functional assessment regarding what QTDM can and cannot do, including in relation to her mobility. Relying therefore on the available evidence, the Tribunal is not satisfied that QTDM has a substantially reduced functional capacity in relation to mobility under subsection 24(1)(c)(iv) of the NDIS Act. While QTDM may have such a reduced functional capacity, there was simply insufficient evidence for the Tribunal to be satisfied of such a contention and the overwhelming majority of the evidence indicated otherwise.
Therefore, based on the requisite functional, practical assessment of what QTDM can and cannot do, having regard to the available evidence, the Tribunal finds that QTDM does not have a substantially reduced functional capacity to mobilise due to her impairments as required to satisfy subsection 24(1)(c)(iv) of the NDIS Act.
Self-care
Based on the available evidence set out above in this decision, the Tribunal is also not satisfied that QTDM’s impairments result in substantially reduced functional capacity to undertake the activity of self-care pursuant to subsection 24(1)(c)(v) of the NDIS Act. While the evidence indicates that QTDM has reduced functional capacity in undertaking the activity of self-care, the Tribunal finds that this reduction is not substantial as required by the NDIS Act.
The Access Guideline states that self-care involves activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, and caring for health care needs. As the Tribunal said in Madelaine (at [121]), having a substantially reduced functional capacity to care for oneself ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being’. The evidence before the Tribunal was that QTDM can independently perform all of the self-care activities listed in the Access Guideline, being personal care, hygiene, grooming and feeding herself, showering, bathing, dressing, eating, toileting, grooming and caring for her own health care needs and there are no significant gaps in her capacity to do so.
Pursuant to the Access Guideline, QTDM’s functional capacity is to be considered ‘in the periods between acute episodes’. Taking a ‘holistic’ view, as enunciated in HPSC and National Disability Insurance Agency [2021] AATA 727 at [37], about QTDM’s life circumstances, having regard to the nature, frequency and intensity of any acute episodes or ‘flare ups’ and the situation in the periods between those episodes, the evidence does not establish that QTDM has a substantially reduced functional capacity in relation to self-care. While the Tribunal accepts that QTDM does have reduced functional capacity in the activity of self-care, the Tribunal cannot be satisfied that the requisite degree of reduced functional capacity to meet the legislative requirements is established on the available evidence.
QTDM’s evidence was that she does not shower daily, but is able to do so independently. While QTDM uses bathroom aids such as grab rails for toileting and has considered a shower seat and may occasionally require assistance for some self-care activities, she does not ‘usually’ require assistance and can largely perform all activities of self-care independently and there are no significant gaps in her capacity to do so. For these reasons, based on the evidence set out above in relation to self-care, the Tribunal is not satisfied that QTDM ‘usually’ requires the assistance of another person to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in this activity or is unable to do so without assistive technology pursuant to paragraph 5.8 of the Rules. That is, the evidence before the Tribunal was that QTDM can perform all of the self-care activities listed in the Access Guideline, including personal care, hygiene, grooming and feeding herself, showering, bathing, dressing and toileting and only occasionally has assistance with a few tasks. Having regard to all the activities of self-care, while QTDM has reduced functional capacity in this domain, the Tribunal finds that it is not substantial, as required for QTDM to satisfy subsection 24(1)(c)(v) of the NDIS Act.
Social interaction
The Tribunal had limited evidence regarding this activity, but it is not satisfied on the available evidence that QTDM has a substantially reduced functional capacity in relation to social interaction. Under the Access Guideline, social interaction includes making and keeping friends, interacting with the community, behaving within limits accepted by others, and coping with feelings and emotions in a social context. In her evidence to the Tribunal, QTDM confirmed that she had accompanied a friend while that person was moving house. QTDM’s submissions to the Tribunal also indicated the maintenance of a level of social interaction that does not evidence the requisite substantially reduced functional capacity in this activity, although it is accepted by the Tribunal that this interaction is impacted by her impairments and other conditions. In this regard, Dr Dassanayake in April 2021 recorded that QTDM had stopped attending a lot of social events due to her impairments and QTDM stated that she is unable to be involved in her children’s extra-curricular activities.[66]
[66] Exhibit 1, page 46; Exhibit 2.
Communication, Learning and Self-management
For the avoidance of doubt, and based on the above reasons and evidence before the Tribunal, it is not satisfied that QTDM has a substantially reduced functional capacity to undertake any of the three remaining prescribed activities, being communication, learning, or self-management, required to satisfy subsection 24(1)(c) of the NDIS Act. The limited available evidence regarding QTDM’s functional capacity to undertake these activities does not support a finding that QTDM experiences a substantially reduced functional capacity; she is able to participate effectively or completely without assistive technology, equipment (other than commonly used items) or home modifications and she does not ‘usually’ require assistance from other people to participate in these activities or to perform tasks or actions required to undertake or participate in them. However, the Tribunal accepts that QTDM experiences some reduced capacity in one or more of these activities as a result of her impairments, including due to being fatigued and having ‘brain fog’, which can, at times, impact upon her communication, learning and self-management.[67]
[67] Exhibit 1, page 46.
CONCLUSION
In summary, and for the above reasons, QTDM does not meet the legislative requirement under subsection 24(1)(c) of the NDIS Act to meet the disability requirements to be granted access to the NDIS. Having regard to the conjunctive nature of subsection 24(1) of the NDIS Act, requiring satisfaction of all criteria,[68] in circumstances where the Tribunal has found that QTDM’s impairments do not result in her having ‘substantially reduced functional capacity’ to undertake one or more of the activities under subsection 24(1)(c) of the NDIS Act, it follows that the Tribunal is not required to make findings in relation to subsections 24(1)(d) and (e) of the NDIS Act, regarding the effect on her social or economic participation and requirement for support under the NDIS for her lifetime. Plainly, as a result of the Tribunal’s findings based on the presently available evidence, QTDM is not likely to require support under the NDIS for her lifetime, although it accepts that QTDM’s impairments affect her capacity for social and economic participation.
[68] Howard and National Disability Insurance Agency [2019] AATA 2 at [25].

The Tribunal’s decision does not discount the significant nature of QTDM’s impairments and other health conditions. The Tribunal acknowledges that these have a substantial impact on her life. However, on the totality of the presently available evidence, the Tribunal has found that QTDM does not have a substantially reduced functional capacity to undertake one or more of the prescribed activities under subsection 24(1)(c) of the NDIS Act.
Accordingly, in circumstances where the Tribunal has found that QTDM does not meet the disability requirements in section 24 of the NDIS Act, she does not, at this time, meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS. However, in the future, QTDM may again apply for access to the NDIS if there is sufficient evidence that her functional capacity in one or more of the prescribed activities is substantially reduced as a result of her impairments or other medical conditions and she meets the legislative criteria under section 24 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost

...................[SGD]....................................................
Associate
Dated: 15 November 2022

Date(s) of hearing:

15 August 2022

Date final submissions received:

10 November 2022

Representative for Applicant:

Counsel for Respondent:

Mr K

Mr J P Lessing

Solicitor for Respondent:

Ms Sarah Hardie, HWL Ebsworth Lawyers

Date(s) of hearing:	15 August 2022
Date final submissions received:	10 November 2022
Representative for Applicant: Counsel for Respondent:	Mr K Mr J P Lessing
Solicitor for Respondent:	Ms Sarah Hardie, HWL Ebsworth Lawyers