Ray and National Disability Insurance Agency

Ray and National Disability Insurance Agency [2020] AATA 3452 (8 September 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2018/5843
Re:Jennifer Ray
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:8 September 2020
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth).
.....[sgd]..................................................................
Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – disability arising from impairments resulting from autism spectrum disorder, attention deficit hyperactivity disorder, anxiety and depression – whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities – methodology used by experts to conduct assessment of level of impairment – whether streamlined process in National Disability Insurance Agency’s Operational Guidelines was considered and applied – Tribunal satisfied the Applicant met mandatory “age”, “residence” and “disability” access requirements – decision set aside and substituted with decision that the Applicant met access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth)
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Social Security Act 1991 (Cth)
Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, DSM-5
National Guideline for the Assessment and Diagnosis of Autism Spectrum Disorders in Australia
NDIA Operational Guidelines
REASONS FOR DECISION
Member K. Parker
8 September 2020

This application is about whether the Applicant, Mrs Jennifer Ray, should be granted access as a participant to the National Disability Insurance Scheme (NDIS). Mrs Ray has been diagnosed as having several medical conditions including autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD) and anxiety and depression.
Mrs Ray contends that she meets the mandatory access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (Act) being:
(a)the “age” access criteria;
(b)the “residence” access criteria; and
(c)either the “disability” access criteria or the “early intervention” access criteria.
The National Disability Insurance Agency (NDIA), being the relevant Commonwealth agency which administers and delivers the NDIS, contends that Mrs Ray does not meet either the “disability” or “early intervention” access criteria.
The NDIA accepts that Mrs Ray meets the “age” and “residence” access criteria.[1] For the reasons set out below, the Tribunal is satisfied that Mrs Ray meets the “disability” access criteria under s 24(1) of the Act.
[1] Refer paragraph [7] of the NDIA’s Statement of Facts, Issues and Contentions dated 27 March 2020 (NDIA’s SFIC).
Accordingly, the Tribunal sets aside the decision under review and in substitution decides that Mrs Ray meets the access criteria under s 21 of the Act.
BACKGROUND
Mrs Ray has been married to Mr Tony Ray for about 23 years. Mr and Mrs Ray have two teenage daughters. Both of their daughters have been diagnosed with the condition of ASD. Their eldest daughter is a participant under the NDIS. Mrs Ray and her family live together in a township in regional Victoria. Mr Ray gave evidence that he assists Mrs Ray with many activities of daily living and the care for their two daughters.
Mrs Ray attended a mainstream secondary school at a private girls’ school in Melbourne. Mrs Ray did not successfully complete Year 11. Mrs Ray undertook further studies from 1985 to 1989 at a registered training organisation (RTO) for the qualification of Diploma of Ministry, Missiology.[2] Mrs Ray said she completed this three-year course in five years. Mrs Ray told the Tribunal that her teachers probably made allowances for her because they knew how hard she had worked. The Tribunal will address this in further detail below.
[2] Refer Exhibit T1, Tab A26 – academic transcript issued by RTO.
Over the years, Mrs Ray has attempted (unsuccessfully) to hold down paid employment. Mrs Ray was dismissed from certain jobs in the past due to performance-related issues, reportedly being unable to follow instructions or performing her tasks too slowly.
Mrs Ray is currently receiving the disability support pension under the Social Security Act 1991 (Cth). Mr Ray is also unemployed reportedly due to his need to care for Mrs Ray and their two daughters.
ISSUES
The issue arising in this case is whether Mrs Ray satisfies the “disability” or “early intervention” requirements under ss 24 or 25 of the Act. The NDIA accepts that Mrs Ray meets the “age” and “residence” access criteria and the Tribunal finds that those two latter requirements were met by Mrs Ray.
The “disability” access criteria comprise five mandatory requirements as set out in subsections 24(1)(a) to (e) of the Act (reproduced in the paragraph [14] below).
The NDIA focussed its contentions on s 24(1)(c) of the Act and invites the Tribunal to find that this requirement is not met by Mrs Ray. Accordingly, the Tribunal will consider:
(a)whether this requirement is deemed to have been met by reason of the application of the deeming provisions set out in r 5.8(a) of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDIS Access Rules) applying to Mrs Ray; or
(b)the Tribunal is otherwise satisfied under s 24(1)(c) of the Act that Mrs Ray’s impairment has resulted in “substantially reduced functional capacity” in any one or more of the prescribed activities referred to in this provision.
The Tribunal will also consider the implications of the streamlined process established by the NDIA under its Operational Guidelines, which would apply if Mrs Ray has any one of the conditions specified in List A or List B attached to the Operational Guidelines, or is an existing participant in any of the programs specified in List C.
LEGISLATIVE REGIME
Section 24 of the 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 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.
Section 27(b) of the Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in “substantially reduced functional capacity” of a person to undertake one or more activities for the purpose of s 24(1)(c) of the Act. Such rules have been prescribed, namely, the NDIS Access Rules referred to above. The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.
Specifically, r 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a “substantially reduced functional capacity” to undertake any one or more of the relevant activities in relation to subsection 24(1)(c) of the Act. It provides as follows:
5.8An 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.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
The NDIA has also issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[3] The Tribunal considers that it should follow such policy guidance unless there are cogent reasons not to do so, for instance, if to follow such guidance would be inconsistent with the legislative scheme comprising the Act and the regulations made under the Act, which includes the NDIS Access Rules.
[3]
Section 8.3 of the Operational Guidelines deals with s 24(1)(c) of the Act 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 case, 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.
Section 8.3.1 of the Operational Guidelines elaborates upon the circumstances when an impairment results in “substantially reduced functional capacity” to undertake activities, reflecting upon the substance of the deeming provisions in r 5.8 of the NDIS Access Rules, as set out below:
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.
Objectives and guiding principles
In deciding this application, it is critical for the Tribunal to bear in mind the overarching objectives and guiding principles as set out in the Act. Section 3 of the Act provides as follows (emphasis added):
3.        Objects of Act
(1)       The objects of this Act are 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 launch; 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; and
(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; and
(i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i)the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and
(ii)the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii)the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv)the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v)the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).
(2)       These objects are to be achieved by:
(a)providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and
(b)adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c)establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.
(3) In giving effect to the objects of the Act, regard is to be had to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)       the broad context of disability reform provided for in:
(i)the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and
(ii) the Carer Recognition Act 2010; and
(d)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 National Disability Insurance Scheme.

Section 4 establishes a set of general principles to guide actions taken under the Act, as set out below (emphasis added):
4 General principles guiding actions under this Act
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6)People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7)People with disability have the same right as other members of Australian society to pursue any grievance.
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(10)     People with disability should have their privacy and dignity respected.
(11)     Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(13)The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a)promoting their independence and social and economic participation; and
(b)promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c)maximising independent lifestyles of people with disability and their full inclusion in the community.
(14)      People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
STREAMLINED PROCESS UNDER NDIA OPERATIONAL GUIDELINES
The NDIA has established a streamlined process under its Operational Guidelines to be applied in some, but not all, cases, when determining who should be granted access to the NIDS (Streamlined Process). It is set out in section 8.6 of the Operational Guidelines as reproduced below:
8.6 Streamlined process for determining the disability access requirement
The NDIA has developed a list of conditions and state or territory disability programs which are designed to streamline the access process in certain cases.
Where a prospective participant has a condition included in List A or List B, or is an existing client of a disability program included in List C (attached to this guideline), the NDIA will be satisfied that the person meets one or more of the disability requirements.
8.6.1 'List A' Conditions
Where a prospective participant has been diagnosed with a condition/s on List A the NDIA will be satisfied that the person meets the disability requirements without further assessment. A person does not need to have a condition on List A to become a participant in the NDIS.
8.6.2 'List B' Conditions
Where a prospective participant has been diagnosed with a condition/s on List B the NDIA will be satisfied that the person has a disability attributable to one or more impairments that is, or is likely to be, permanent without further assessment. For prospective participants diagnosed with a condition/s on List B, the NDIA will only need to assess whether the prospective participant:
·has an impairment/s that result in substantially reduced functional capacity to perform one or more activities;
·has impairment/s which affect the person's capacity for social or economic participation; and
·is likely to require support under the NDIS for the person's lifetime.
A person does not need to have a condition on List B to become a participant in the NDIS.
8.6.3 Existing clients of defined state or territory disability programs on 'List C'
Defined programs are disability programs that have disability requirements equivalent to the NDIS. Where a prospective participant is an existing client of a defined Commonwealth, state or territory disability program on List C, the NDIA will be satisfied that the person meets the disability requirements without further assessment.
A person does not need to be a client of a defined program on List C to become a participant in the NDIS.
In summary, under the Streamlined Process if a person applying to become a participant of the NDIS has a medical condition that is specified in List A attached to the Operational Guidelines, or they are a current participant in one of the Federal or State programs for people with disabilities as specified in List C, the NDIA will be satisfied that the person meets the “disability” access criteria under s 24(1) of the Act and they are not required to be assessed as to whether the impairment(s) has resulted in “substantially reduced functional capacity” of the person to undertake one or more of the specified activities. For a person who has a medical condition as specified in List B, they will be taken to have established that their disability is “permanent”, but they will still be required by the NDIA to be assessed as to whether they meet the remaining “disability” requirements including whether the impairment(s) has resulted in “substantially reduced functional capacity” to undertake one or more of the specified activities.
List A includes the following medical condition:
14. List A - Conditions which are likely to meet the disability requirements in section 24 of the NDIS Act.
…
2. Autism diagnosed by a specialist multi-disciplinary team, paediatrician, psychiatrist or clinical psychologist experienced in the assessment of Pervasive Developmental Disorders, and assessed using the current Diagnostic and Statistical Manual of Mental Disorders (DSM-V) diagnostic criteria as having severity of Level 2 (Requiring substantial support) or Level 3 (Requiring very substantial support).
List B includes the following condition:
15. List B - Permanent conditions for which functional capacity are variable and further assessment of functional capacity is generally required.
1.Conditions primarily resulting in Intellectual/ learning impairment
·Intellectual disability
·Pervasive developmental disorders not meeting severity criteria in List A or List C
·Asperger syndrome
·Atypical autism
·Childhood autism.
The defined programs in Victoria in List C include:
16. List C - Defined programs
a. Victoria
Clients of the following Victorian schemes will generally be considered to satisfy the disability requirements without further evidence being required:
·Individual Support Package (ISP)
…
The Tribunal considers that the Streamlined Process established by the NDIA in its policy guidance provided by the Operational Guidelines is consistent with the legislative regime under the Act and its regulations including the NDIS Access Rules, and it should be adopted and adhered to by the NDIA and by the Tribunal on review. The process is inclusionary, not exclusionary, and appears to the Tribunal to be structured in a way designed to ensure consistency and efficiency in decision-making in relation to applying the access requirements under the Act to persons seeking to become participants under the NDIS.
MRS RAY’S CONTENTIONS
Mrs Ray did not make any contentions in relation to the Streamlined Process as set out in the Operational Guidelines. Mrs Ray relies upon establishing that the impairments arising from her medical conditions have resulted in a “substantially reduced functional capacity” in her undertaking four of the specified activities under s 24(1)(c) of the Act including:
(a)communication, which includes “being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age”;[4]
(b)learning, which includes “understanding and remembering information, learning new things, practicing and using new skills”;[5]
(c)self-care, which includes “activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs”;[6] and
(d)self-management, which includes “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”.[7]
[4] Refer paragraph [11] of Ms Ray’s Closing Submissions dated 6 July 2020 (Ms Ray’s Closing Submissions).
[5] Refer paragraph [33] of Mrs Ray’s Closing Submissions.
[6] Refer paragraph [38] of Mrs Ray’s Closing Submissions.
[7] Refer paragraph [43] of Mrs Ray’s Closing Submissions.
Mrs Ray contends that she usually requires assistance from other people to undertake those four activities. Mrs Ray contends that she is mostly assisted by her husband, Mr Ray, for all four activities and by her psychologist in relation to two of those activities being communication and self-management.
In support of her application, Mrs Ray called her former treating psychologist (who, at the time of the hearing, was unregistered due to an administrative oversight by her in seeking renewal of her registration), Ms Teana Barry, as an expert witness at the hearing. Ms Barry holds a Bachelor of Arts in Psychology and Sociology from Monash University College, Gippsland; a Postgraduate Degree in Psychology from Deakin University; and she has undertaken family therapy training and ADHD coach training in the United States of America.[8] Ms Barry said she had seen Mrs Ray on a professional level for about four or five years at least every four to six weeks.[9] Ms Barry said she had not seen Mrs Ray since the previous year because of the distance.[10] Despite this, Ms Barry told the Tribunal that she still considered that her report about Mrs Ray was accurate “today”.[11]
[8] Refer Transcript at P-50.
[9] Ibid.
[10] Refer Transcript at P-51.
[11] Ibid.
NDIA’S CONTENTIONS
The NDIA accepts that Mrs Ray’s impairment may have “some limited impact upon her psychosocial function”, but her level of impairment did not “meet the functional impairment threshold” prescribed by paragraph 24(1)(c) of the Act and r 5.8 of the NDIS Access Rules.[12]
[12] Refer paragraph [1.1] of the NDIA’s Closing Submissions dated 27 July 2020 (NDIA’s Closing Submissions).
The NDIA made a cursory reference to its Streamlined Process in its written submissions and at the hearing.[13] Those references were confined to whether Mrs Ray had ASD Level 3 and therefore, had a condition listed in List A. The NDIA also sought to place reliance on the word “likely” appearing in the heading of List A to suggest that, “…The operational guidelines do not have binding effect such that confirming the Applicant’s diagnosis will not resolve the functional capacity issue”.[14] The Tribunal does not accept the NDIA’s contentions in this regard as such an interpretation is inconsistent with the instruction provided under the heading for List A, specifically (emphasis added), “the NDIA will be satisfied that the person meets the disability requirements without further assessment”. This makes it clear that if a person is found to have a condition listed in List A, they are not required to be assessed to see if they meet the functional disability requirement, giving life to the “streamlined” aspect of the Streamlined Process. Importantly, the Tribunal considers that there was not a complete exploration by the NDIA to ascertain whether Mrs Ray had a medical condition specified in List A or B or was an existing client of any of the programs listed in List C, and whether the Streamlined Process applied to her.
[13] Refer paragraph [17] and Annexure A of the NDIA’s SFIC.
[14] Refer Annexure A of the NDIA’s SFIC.
The NDIA did not arrange for an examination of Mrs Ray by a “paediatrician, psychiatrist or clinical psychologist experienced in the assessment of Pervasive Developmental Disorders” to ascertain a precise diagnosis for her using the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, DSM-5 (DSM-5), as referred to in List A.[15] Nor did the NDIA make a request of Mrs Ray’s former or current treating paediatricians, psychologists or psychiatrists to make a precise diagnosis of her condition(s) using the DSM-5.
[15] As specified in List A – reproduced at paragraph [24] of these Reasons for Decision.
Instead, the NDIA contends that the current medical evidence providing for a diagnosis of Mrs Ray’s condition was in conflict and that the Tribunal should:[16]
(a)reject Ms Barry’s diagnosis of “Autism Spectrum Disorder, Level 3 Requiring Substantial Support”; and
(b)prefer the evidence of Mr Ronald Barry, psychologist, who initially diagnosed Mrs Ray in 2006 with, what was then termed, “high functioning autism”.
[16] Refer [3.1] to [3.4] of the NDIA’s Closing Submissions.
Ms Barry’s opinion was that Mrs Ray’s daily functional impairment was “extensive and severe". The NDIA contends that the Tribunal should reject this opinion because Ms Barry:[17]
(a)did not undertake a comprehensive needs assessment for the purpose of expressing her opinion;
(b)did not conduct a clinical interview with Mrs Ray for the purpose of expressing her opinion; and
(c)instead, had relied upon and accepted the assertions in the report prepared by Ms Cathy Saleta, Mrs Ray’s advocate from the Villamanta Disability Rights Legal Service Inc, and had also relied upon her own clinical observations.
[17] Refer [4.1] of the NDIA’s Closing Submissions.
As to the severity of Mrs Ray’s condition, the NDIA contends that the Tribunal should accept the evidence of an independent occupational therapist, Occupational Therapist X.[18] Occupational Therapist X is registered with the Occupational Therapy Board of Australia and was called by the NDIA as an expert witness at the hearing.
[18] The Tribunal has omitted the name of the occupational therapist in accordance with orders made by the Tribunal under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth). Those orders were made following a request for such orders received by the occupational therapist after this Decision and Reasons for Decision were handed down, to which both parties to this application provided their consent.
At the hearing, Occupational Therapist X told the Tribunal that she had graduated from a Bachelor of Occupational Therapy about 25 years ago. Occupational Therapist X said in the earlier days, she had worked in the area of paediatrics in developmental disabilities including ASD. Occupational Therapist X said she has worked in the medico-legal setting for the last 18 years. Occupational Therapist X said that about five years ago she had become endorsed by Occupational Therapy Australia to be a provider under the Better Access to Mental Health Scheme and since that time, she had been working clinically and as a medico-legal consultant in that area. Occupational Therapist X confirmed that she was registered with the Board of Occupational Therapy and with AHPRA.[19]
[19] Refer Transcript P-94.
Occupational Therapist X undertook an assessment of Mrs Ray on 6 May 2019 and submitted three reports dated 23 May 2019, 9 November 2019 and 22 May 2020. The NDIA submitted that the Tribunal should accept her evidence because she had:
(a)met with Mrs Ray; and
(b)“undertook a practical functional assessment of [Mrs Ray’s] capacity which focussed upon the particular activities prescribed by paragraph 24(1)(c) of the NDIS Act” using a recommended method for assessing functional capacity as detailed in the “National Guideline for the Assessment and Diagnosis of Autism Spectrum Disorders in Australia”.[20]
[20] Refer [5.2] of the NDIA’s Closing Submissions.
The NDIA summarised Occupational Therapist X’s opinions as follows:[21]
[21] Refer [5.11] of the NDIA’s Closing Submissions.
…the Applicant:
(a)       is able to mobilise independently;
(b) does not require disability specific assistance to support her to effectively manage any of her self-care tasks;
(c)       does not require assistance to support her to learn new things;
(d)       is able to independently self-manage and make appropriate decisions;
(e) does not require assistance to support her to effectively communicate with others, although she finds it difficult to parent her daughters with ASD.
The NDIA also contends that the Tribunal should place weight on the Wechsler Adult Intelligence Scale, Fourth Edition assessment (WAIS-IV) results for Mrs Ray. The WAIS-IV measures cognitive ability in adults. The WAIS-IV assessment of Mrs Ray was administered by Ms Barry.
The NDIA contends that the Tribunal should also place reliance upon the direct observations made of Mrs Ray at the hearing.[22]
CONSIDERATION
[22] Refer [5.3] of the NDIA’s Closing Submissions.
Streamlined Process
Despite the condition of ASD, Levels 2 and 3 being specified in List A and “Asperger Syndrome” or “Pervasive developmental disorders not meeting severity criteria in List A or List C” being specified in List B, as mentioned above, the Streamlined Process was not addressed, other than in a cursory way, by both the NDIA and Mrs Ray in their respective submissions or at the hearing of this application.
The contention of relevance is the NDIA’s invitation to the Tribunal, as set out in paragraph [‎34], to reject Ms Barry’s diagnosis of Mrs Ray as having ASD, Level 3 but instead, to find that she has “high functioning autism” as diagnosed in 2006 by Mr Barry.

However, the first question that arises is what significance does a diagnosis of “high functioning autism” have and what does this term mean in the context of the Streamlined Process? Importantly, how would the NDIA, and in turn, this Tribunal on review, apply a diagnosis of “high functioning autism” to the Streamlined Process, even if the Tribunal were to accept such a diagnosis (which it does not). That is, does “high functioning autism” as diagnosed, fall into the description of “Asperger Syndrome” or “Pervasive developmental disorders not meeting severity criteria in List A or List C” as specified in List B? Such a diagnosis is of little value in the context of determining whether the Streamlined Process should be applied to Mrs Ray. The only illumination provided by the DSM-5 is that “high-functioning autism” falls within a diagnosis of ASD and that a reference to “high-functioning autism” is a term that is no longer used (emphasis added):[23]
Diagnostic Features
The essential features of autism spectrum disorder are persistent impairment in reciprocal social communication and social interaction (Criterion A), and restricted, repetitive patterns of behavior, interests, or activities (Criterion B). These symptoms are present from early childhood and limit or impair everyday functioning (Criteria C and D). The stage at which functional impairment becomes obvious will vary according to characteristics of the individual and his or her environment. Core diagnostic features are evident in the developmental period, but intervention, compensation, and current supports may mask difficulties in at least some contexts. Manifestations of the disorder also vary greatly depending on the severity of the autistic condition, developmental level, and chronological age; hence, the term spectrum. Autism spectrum disorder encompasses disorders previously referred to as early infantile autism, childhood autism, Kanner's autism, high-functioning autism, atypical autism, pervasive developmental disorder not otherwise specified, child-hood disintegrative disorder, and Asperger's disorder.
[23] Refer page 53 of DSM-5.
As detailed above, the process of the NDIA applying the Streamlined Process to Mrs Ray seems to have commenced by the NDIA seeking to dismiss Ms Barry’s diagnosis of “ASD, Level 3”. Beyond that, the task of the NDIA applying the Streamlined Process to Mrs Ray was incomplete.
Specifically, the NDIA, upon rejecting Ms Barry’s “ASD, Level 3” diagnosis, did not then obtain an opinion from a paediatrician, clinical psychologist or a psychiatrist, experienced in the assessment of pervasive developmental disorders, as to whether they would diagnose Mrs Ray under the DSM-5 (being the tool specified by the NDIA in List A of the Operational Guidelines to be used in making this assessment), as having “ASD, Level 2” or “ASD, Level 1” (the remaining two levels of severity for ASD as identified in the DSM-5). This would have allowed for the NDIA to conclusively determine whether Mrs Ray had a condition specified in List A, by checking to see if she had “ASD, Level 2”; or whether Mrs Ray had “ASD, Level 1” which would fall into the description of “Pervasive developmental disorders not meeting severity criteria in List A or List C”) being a condition specified in List B. If such an expert was engaged to assess Mrs Ray, it would also have enabled the NDIA to determine whether Mrs Ray had “Asperger Syndrome” (as this condition was previously known) as specified in List B.
The course taken by the NDIA was to engage an occupational therapist to undertake a functional assessment of Mrs Ray. While a functional assessment is certainly of value for a general assessment of whether Mrs Ray met the “disability” access requirement, this type of therapist is not appropriately qualified, as indicated by the NDIA itself in List A, to provide a precise medical diagnosis for Mrs Ray’s condition(s).
By obtaining a diagnosis for Mrs Ray’s condition, the NDIA would have been in a position to determine whether the Streamlined Process applied to her, before the NDIA moved to (if indeed that was necessary – that is, Mrs Ray was diagnosed as having a condition which did not fall within List A) a general assessment of whether she met the “disability” access requirements under s 24(1) of the Act. Instead, after dismissing Ms Barry’s diagnosis of “ASD, Level 3” and accepting the diagnosis of “high functioning autism”, the NDIA moved directly to the general assessment of whether Mrs Ray met the “disability” requirements under s 24(1) of the Act.
In light of the above, the Tribunal initially gave careful consideration as to whether it should remit this application to the NDIA with directions requiring it to first complete the process of determining whether it was required to apply the Streamlined Process to Mrs Ray by ascertaining a precise diagnosis of her condition of ASD under the DSM-5 to be assessed by an appropriately qualified professional as specified in List A.
However, for the purpose of expediency, the Tribunal has decided not to remit this application but instead, to make its decision on this application without reference to the Streamlined Process. The Tribunal’s reason for doing so is that on the evidence, and explained in detail below, the Tribunal has undertaken the general functional-based assessment and considers that Mrs Ray meets all the “disability” requirements under s 24(1) of the Act.[24]
General assessment of whether “disability” requirements met by Mrs Ray
[24] Because the Tribunal is so satisfied, it was not necessary to consider whether Mrs Ray also met the “early intervention” access criterion.
Section 24(1)(a) - disability
Although the NDIA disputes the precise diagnosis made by Ms Barry of Mrs Ray’s condition, the NDIA invites the Tribunal to prefer the evidence of Mr Barry (who diagnosed Mrs Ray in 2006) that Mrs Ray has “high functioning autism”. Accordingly, it seems there is common ground between the parties that Mrs Ray has the condition of ASD, even though the parties disagree about the severity of that condition. On that basis and in consideration that there was no medical evidence before the Tribunal to suggest that Mrs Ray did not have the condition of ASD, the Tribunal finds that Mrs Ray 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” being ASD, irrespective of how that condition might be qualified or rated in terms of its severity.
The Tribunal is also satisfied on the medical evidence that Mrs Ray suffers from ADHD and anxiety and depression. Specifically, Ms Barry confirms in her report dated 17 October 2019 that Dr Barry had diagnosed Mrs Ray in 2006 with Generalised Anxiety Disorder and Major Depressive Disorder. Mrs Ray is still receiving treatment for this condition. The Tribunal accepts Mrs Ray’s evidence at the hearing that she takes 2.5mg of Zyprexa at night to help her sleep. Mrs Ray also told the Tribunal that she was “getting very desperate” regarding her relationships with her daughters and “at the moment, I’ve getting very exasperated” after having been reportedly close to suffering a nervous breakdown after her daughters were born.[25]
[25] Refer Transcript P-28, lines 40 to 44.
Accordingly, the Tribunal is satisfied the Mrs Ray meets the first “disability” requirement under s 24(1)(a) of the Act.
Section 24(1)(b) – permanent
The Tribunal notes the following information provided about the condition of ASD in the DSM-5:
Manifestations of the social and communication impairments and restricted/repetitive behaviors that define autism spectrum disorder are clear in the developmental period. In later life, intervention or compensation, as well as current supports, may mask these difficulties in at least some contexts. However, symptoms remain sufficient to cause current impairment in social, occupational, or other important areas of functioning.
This is consistent with the structure of the Streamlined Process, such that if a person applying for access to the NDIS has “ASD, Level 1”, being a pervasive developmental disorder “not meeting severity criteria in List A or List C”, they are not required to be assessed for whether the disability is permanent. In other words, it will be presumed as such. Further, there is no suggestion by the NDIA that Mrs Ray’s condition of ASD is a condition that is transitory or curable. Ms Barry in her report dated 17 October 2019 described Mrs Ray’s conditions as “lifelong and will not be ameliorated by medication alone”. This is consistent with the above information provided in the DSM-5 and the Tribunal accepts this evidence.
The Tribunal finds that Mrs Ray’s condition of ASD is permanent and that she meets the second “disability requirement” as set out in s 24(1)(b) of the Act.
Section 24(1)(c) – substantially reduced functional capacity
As cautioned by Justice Mortimer in Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (Mulligan) (as reflected in the NDIA’s Closing Submissions), the Tribunal should not confine its consideration of whether Mrs Ray has met the third disability requirement under s 24(1)(c) of the Act, by considering her circumstances only through the prism of r 5.8 of the NDIS Access Rules. Nor should the Tribunal be concerned with how common the reduction in functional capacity which Ms Ray has might be, with respect to other people.[26]
[26] Refer paragraph [75] in Mulligan.
At [77] in Mulligan, Justice Mortimer observed as follows:
I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
The Tribunal also notes Justice Mortimer’s observations regarding the general construction of the access requirements under the Act at [50] to [56] in Mulligan, as extracted below:
Some issues of construction
50.The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1).
51.Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
52.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 extracted above) 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, after assessment in accordance with Pt 2 of Ch 3 of the Act.
53.At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:
Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.
54.Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support” (31 July 2011), stated:
Individuals receiving individually tailored, funded supports through the NDIS:
should have a disability that is, or is likely to be, permanent, and would meet one of the following conditions:
have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support

be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective
In exceptional cases, the scheme should also include people who would receivelarge identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.
55.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.
56.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.
The Tribunal will begin by considering whether the deeming provisions under r 5.8 in the NDIS Access Rules apply to Mrs Ray’s circumstances and if they do not, whether her impairments otherwise result in “substantially reduced functional capacity” in respect of the specified activities.
The Tribunal considers that the deeming provision most relevant to the circumstances of this case is r 5.8(b). Mrs Ray will be deemed to meet this requirement if the Tribunal is satisfied that she “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”. The reference to the activity is a reference to any of the six specified activities referred to in s 24(1)(c) of the Act.
The Tribunal will consider each of the four activities identified by Mrs Ray in her Closing Submissions, taking each in turn. The Tribunal also considers the activity of social interaction in relevant in this case, but Mrs Ray need only establish that her impairments result in a “substantially reduced functional capacity” in one of the specified activities, so the Tribunal will start with the four activities as nominated by her.
Before doing so, at a general level the Tribunal inquired of Mr Ray as to whether he might provide more assistance and assert more control over Mrs Ray than was necessary. This had been intimated in some of the documents before the Tribunal including a statement by Mrs Ray’s mother. The Tribunal also sought to understand from Mr Ray what supports he considered were required by Mrs Ray under the NDIS and how they might assist her. The Tribunal notes the following exchange that took place with Mr Ray at the hearing:[27]
[27] Refer Transcript P-42 to P-44.
Tribunal: In terms of the role that you play in Jenny’s life, do you think you do more than you need to, to help her with everyday things?
Mr Ray: No, I don’t. No. Most of it’s because I have to. If I don’t do it, things won’t operate the way they need to operate and it’s going to affect the kids, so I’ve got to keep a good balance. And I’ve had a lot of support from groups like (Indistinct) autistic services and other groups that have helped me understand and what I need to do. So, I tried to balance it all and yes, just my best, I guess.
Tribunal: Have there been opportunities where you’ve not assisted her in the way you normally do, just to see what will happen? Whether she can develop some skills to do more for herself?
Mr Ray: Yes. Look, Dr Barry was the one that told me to make sure she did the cooking. So, even he said, it doesn’t matter if it takes her three hours, doesn’t matter what happens. No matter, she even messes up, he said, she’s got to do it. If she doesn’t do it, then she’s going - yes, she’ll collapse anyway. So, we need to give her responsibilities that she can do. And that’s the thing, she might be a slow cooker and it might take her three times longer than anyone else, but she’s doing it. So, that’s the important thing.
Tribunal: In your statement, you mentioned about needing to pretty much go over what she does in the garden and do a lot of those tasks again. Is that correct?
Mr Ray: Yes. We do have those problems. But I’m probably letting go a bit more. I’ve just decided I just can’t handle it anymore. I’d like - it just frustrates me too much, so it’s best for me to let it go and that’s what I’ve been doing a bit more lately because it’s just frustrating me too much and that’s - I already have an anxiety disorder, which has been diagnosed by a doctor down at the medical centre. So, I don’t really need that extra anxiety, so I’m letting more things go at the moment that really just aren’t important.
Tribunal: Do you think that that anxiety, does that cause you to exercise too much control over Jenny?
Mr Ray: No. I don’t. No. No. Because - yes, again, we’ve got to - everything’s got to be balanced and like I said, I do get - I have got my own support workers that are helping me, like, within Australia. And they’re telling me and I’ve been and talking about what I’m doing, what I’m not doing, so they’re guiding me a bit at the moment. And they’re the ones that sort of said let these things in the garden go because it’s affecting my health.
Tribunal: Yes. And so we heard some evidence from Jenny that it was either you or Cathy that may have suggested not to involve Jenny’s mother in this or to let Jenny’s mother know about this case. Is that correct?
Mr Ray: Yes, Jenny or me wouldn’t, only because Jenny doesn’t even understand the autism, and she was the one when she first got diagnosed with autism just wouldn’t accept it. So it’s - she’s, yes, it’s only - her father always thought she had autism basically when she was very long (sic), and he always thought she was autistic and he kept trying to say, ‘Look, she’s got to get it diagnosed’, but she refused, and even went - I did get her diagnosed. I think she was more (indistinct) than anything else, so it’s - yes, it’s not a good place for us in that area I’m afraid.
Tribunal: All right. What do you see are the main reasons why Jenny wants to seek access to the NDIS? What sort of support do you consider needs to be available to her to assist her life within your family?
Mr Ray: I think a lot of - Dr Barry, I think, summed it up pretty well. He said she’s going to need ongoing training on how to deal with the teenagers. Otherwise the relationships will just break down, and I think that’s where we’re coming to a point now where she really needs that ongoing training, especially at the moment because like I said, we’re really at breaking point at the moment. So if something doesn’t change, who knows. It might all break down and I’d hate to see that happen, but you know, [one of the daughters has] been crying on my shoulder several times lately, just not coping. So I know the NDIS could help us a lot in giving us the people we need to go through this period.

Ms Barry was asked whether she considered Mr Ray did more to assist Mrs Ray than was required. Ms Barry responded as follows:
Tribunal: Coming back to her husband, do you think that he controls a lot of the day- to-day activities in the home, to a point that she’s being excluded from the opportunity to undertake those activities?
Ms Barry: No, I wouldn’t say so. I would say more to the point that over the years, he has learnt what she is capable of and not capable of, and taken up the slack of what she is not cognitively able to do.
The Tribunal found Mr Ray to be an honest and forthright witness and it was apparent that he has interacted with Mrs Ray in a way that demonstrated that he has had her best interests at heart and his intention is not to reduce her independence. He also demonstrated that he was willing to take the advice of others, professionals for instance, when it came to knowing how to strike a balance between how much assistance he should provide to Mrs Ray and when to “let go” of certain matters.
The Tribunal accepts Mr Ray’s evidence that he is required to assist Mrs Ray with a lot of her daily living activities, and that he did so because her capacity to undertake those activities independently was substantially impaired or in some cases, she is incapable of performing those activities, for instance, working out for herself how to use a map or the GPS in a mobile telephone, to travel from one place or another or working out how to use a bank card. There are also activities for which Mrs Ray objectively requires Mr Ray’s assistance, but for which he has exercised his judgement to leave Mrs Ray to undertake those activities independently, even if they are performed incorrectly or slowly such as some aspects of the cooking and gardening. The Tribunal accepts Mr Ray’s evidence that he is selective when deciding whether to intervene in an activity that she is doing.
The Tribunal also notes the unchallenged evidence provided in relation to Mrs Ray’s sensory profile, which is likely to impact on her capacity to undertake the specified activities mentioned below. The Tribunal accepts the assessment by Chris Hannah, occupational therapist, as set out in a report dated 2 May 2007 following a sensory profile assessment undertaken of Mrs Ray:
Understanding Jenny's Sensory Profile
Jenny's high scores of much more than most people in each of the four quadrants indicate her pattern's (sic) of processing sensory information is complex. It is likely that Jenny has a narrow band for optimal levels of sensory input for her nervous system to respond for functional performance.
Her profile indicates there are occasions when her neurological threshold to sensory input is high and requires increased sensory input to initiate awareness of and response to sensory input. However, there are occasions when her neurological threshold to sensory input is low and requires reduced sensory input. Jenny's ability to function at home and in the community depends on achieving a balance of the nervous system activation so that she is alert to certain sensory input while being able to screen out distracting or overwhelming input. For example Jenny likes to sing or make other noises whilst working, but is distracted if there is externally generated noise around her and finds a child's screaming overwhelming. This causes shutdown and she then needs to re-group and withdraw in order to continue functioning.
An examination of Jenny's scores within the various sensory processing categories shows that across all the sensory domains (taste/smell, movement, visual, touch, activity level and auditory) Jenny's responses to sensory input vary between being passive and active. This indicates that Jenny has difficulty regulating her responses such that it may be difficult for Jenny to take control of the environment to achieve the level of sensory input that is optimal for her at any given time.
Communication
In respect of the activity of communication, the NDIA relies on the observations of Occupational Therapist X at the hearing as follows:[28]
…I observed that she was able to communicate effectively with me, she was able to answer all of my questions appropriately. She – her articulation was clear, and it was a normal pace and a normal rhythm. There was no evidence of the echolalia that I talked about before or pronoun reversal that is – that can be evident in people with ASD. Her intonation was slightly different in that she was – just the melodical quality of her voice was slightly different but it wasn’t significant and she was able to communicate with me at the beginning of the assessment that she was a little bit nervous and she was able to communicate and answer all of my questions as required…
… I observed that Ms Ray had no difficulties communicating her needs in written or verbal format…
… She had no – she was unable to describe any specific difficulties she had with using a phone if required, she just didn’t have a need to her particular daily routine and, yes, she doesn’t use social media because she doesn’t want to. She did indicate she had difficulty understanding the evening news as well and she had difficulty communicating when there was a lot of people around…
[28] Refer Transcript at P-100, line 35; P-102, line 25 and P-102, line 5 respectively.
At the hearing Occupational Therapist X also made the following clinical observations of Mrs Ray at a general level:[29]
My – the overview of my clinical impression is that Ms Ray is functioning reasonably well considering the diagnosis that she has. She appears to have received significant intervention in the past, and this has translated into a level of function that is adequate for her current life roles.
…
Very broadly speaking Ms Ray presented as a very warm and friendly person, she was very personable, and she was responsive in terms of her communication. Her social behaviours were appropriate in that she applied appropriate turn taking, she greeted me when I arrived, she smiled in reciprocation to my smile, she offered me a drink and - a cup of tea, and she responded to each of the questions that I asked. She was very cooperative and polite throughout. Now, my – a comparison to other people who I have assessed with autism and who are participants in this scheme, for example, they will communicate via echolalia, which is essentially where they repeat back what you have said to them, verbatim, because they don’t understand the meaning of what you’re asking them. So if you say, “What is your name?” They will say, “What is your name?” And they continue to repeat that as you go along. Or another example is someone who just continued to talk about their special interests without any regard at all to the question that you’ve asked or any direct questioning to go off that theme. At the more extreme end I have had clients who just simply don’t acknowledge my presence at all, they just – I’m just an object that’s in their way, so I might be speaking directly to them and they don’t respond at all. And at the further extreme they might run away from the room and flap their arms, and sometimes they will throw objects. So – or they might repeat a sound that is like – just monosyllabic that has no – that has no meaning. To me it might have some meaning to a close carer who understands that that particular sound means that they want food. Or another example is that they will use pronouns incorrectly, so for example they might – I would refer to myself as [Occupational Therapist X] rather than I, so “[Occupational Therapist X] had a snack” rather than “I had a snack.”
[29] Refer Transcript P-97.
Occupational Therapist X told the Tribunal at the hearing that she did not consider that Mrs Ray usually required assistance with the activity of communication, and went on to make the following observations of Mrs Ray:[30]
Jennifer does not require assistance to communicate based on my direct observations but also based on her self-report. She indicated that she was attending these groups and visiting her friends at houses – the houses of friends, sorry, and that she was communicating effectively in those domains. She specifically referred to difficulty with her daughters which I’ve listed under Social Interaction. So that’s not a communication problem per se, it’s difficulty interacting with her daughters which I’ve addressed separately and extensively. So the short answer is no, she doesn’t. She does – she does receive assistance in making appointments but there’s no reason why she couldn’t do that herself if she was provided with a phone and she was motivated to do so. It’s just (indistinct) for her to have one at the moment really based on her current routines.
[30] Refer Transcript P-102.
In terms of communication using a mobile phone, Occupational Therapist X gave the following evidence:[31]
Ms Anderson: And if she knows her husband’s telephone number off by heart, why wouldn’t she use the mobile phone that she had?
Occupational Therapist X: She - - -
Ms Anderson: - - - if there is not some difficulty with using the phone?
Occupational Therapist X: Sorry? She just didn’t – she didn’t like it. She just didn’t want to. She didn’t relate to the mobile phone. Again, if I was her treating therapist I would add a lot more functionality to that phone so that it actually became something that she would use. So for clients like her, I will often give them a lanyard, so something that’s attaching to them, so the phone serves much more of a functional purpose than calling someone that you very rarely need to call. And so that’s what I would do. As I said before, this couple of been together for 20 years, they have established routines and habits, and just because they’re following those habits doesn’t necessarily mean that they don’t have capacity to learn new ones if they want to. There was no indication from either of them that this was a pattern that wasn’t working for them. If it wasn’t working for them, I would suggest changes. And to be honest, that is something that I would probably suggest, getting a low-cost phone and putting a lot more functionality on it, including some more rewarding functions onto the phone so that it was used by her more commonly than it would otherwise be.
[31] Refer Transcript P-121.
As mentioned above in paragraph [‎68], Occupational Therapist X gave evidence that Mrs Ray reported having difficulty understanding the evening news. When asked for an explanation why this was the case, Occupational Therapist X gave the following response:[32]
I would say it is the – it’s the low average intellectual function is most likely it. She doesn’t watch the news so she doesn’t have a lot of context to relate it to, so there’s probably that as well. She just – so that if she jumps on ad hoc and watches it, there is no context to relate this story to one that was last week. So I think that she just doesn’t watch it, and so there are two factors there.
[32] Refer Transcript P-122.
Occupational Therapist X gave evidence at the hearing that she considered that in respect of receptive, expressive and written communication that she regarded Mrs Ray as being at the age equivalence of an adult.[33]
[33] Refer Transcript P-105.
Those observations did not reflect the observations made by Ms Helen Zuidema, an occupational therapist, in a letter dated 23 July 2019 which was tendered as evidence by Mrs Ray. Ms Zuidema stated she had been attending Mrs Ray’s household for about one year prior to the date of her letter for the purpose of providing support to Mrs Ray’s eldest daughter. Ms Zuidema described Mrs Ray as “socially inept with conversations following a predictable (repetitive) pattern” and noted several behavioural issues such as inappropriate hugging of persons with whom Mrs Ray came into contact, including reported unprompted tight hugging of Ms Zuidema when she visited Mrs Ray’s house.
Ms Zuidema also made the following observations of Mrs Ray in her report dated 17 October 2018:
Jenny has very neat handwriting and can write a birthday card or short note.
She is unable to express her wants and needs, feelings or opinions in written form.
She needs help filling in forms as she is unable to understand the meaning of the questions.
Jenny answers the mobile phone she shares with Tony. She seldom makes calls and is unable to use a computer or access the internet.
…
Ms Barry also described a different picture, than Occupational Therapist X, in highlighting Mrs Ray’s communication difficulties in her report dated 17 October 2019:
Mrs. Ray has extreme difficulties in being able to understand most spoken language if it is not in a simplified format. She is unable to understand jokes, sarcasm, threats, lies, colloquialisms, nor irony. Mrs. Ray’s comprehension skills are further retarded by her inability to infer meaning in communications, as she takes spoken and written language at its face value and believes exactly what she is told.
Further to this rigidity of language, Mrs. Ray has an extremely reduced capacity for working memory, rendering her almost incapable of holding more than two pieces of information in her working memory for more than 1 – 2 minutes. Added to this, she becomes fixated on her own ideas and does not listen to what others are communicating to her; becoming easily lost in the flow of the conversation.
Mrs. Ray is not able to read non-verbal body language. She will continue to approach individuals who are exhibiting body language that indicates that her advances are unwelcome, body language that indicates that the individual is a threat to Mrs. Ray; or will withdraw from interactions which indicate that she is welcomed.
Mrs. Ray’s emotional regulation system is severely compromised in relation to communications. If something is perceived as upsetting to Mrs. Ray she will become inconsolable for an extended period of time; alternatively if she is excited she becomes overly and overtly demonstrative of her excitement which highlights the lack of maturity that she shows for an adult, behaving more like a young child. Mrs. Ray also does not show an awareness of the inappropriateness of this behaviour even when it has been pointed out to her on numerous occasions. Explicit directions must be provided for each situation for Mrs. Ray as she is unable to generalise instructions/rules from one setting to the next.
Ms Barry confirmed at the hearing that Mrs Ray was unable to read non-verbal body language and she told the Tribunal this was based on Mrs Ray’s self-reporting and Ms Barry’s observations of Mrs Ray during interviews.[34] Occupational Therapist X disagreed with this observation and cited an instance where she had observed Mrs Ray reading body language during their interaction.
[34] Refer Transcript P-80.
The Tribunal considers the observations made by Ms Barry are more reliable than those made by Occupational Therapist X, as Ms Barry has seen Mrs Ray on approximately 50 to 60 occasions, including out of the comfort and familiarity of her home environment, whereas Occupational Therapist X had only seen Mrs Ray once for a period of three hours in her home environment.
Further, the Tribunal was able to make direct observations of Mrs Ray’s capacity to communicate at the hearing. For the most part, Mrs Ray seemed to be able to understand the questions being asked of her and to provide appropriate answers. Largely, but not entirely, there was reciprocity in the exchange between Mrs Ray and those persons addressing her at the hearing. The Tribunal would not go so far as to agree with Ms Zuidema characterisation of Mrs Ray as being “socially inept”. However, the Tribunal observed that Mrs Ray’s communication was not as it should be for someone of her age. For one, there were occasions during the hearing when Mrs Ray lost focus and was actively required to be redirected to the question in order to elicit the requested information from her. At other times, Mrs Ray diverted completely off topic and began talking about her passion for soft toys. Mrs Ray brought some of those soft toys to the hearing with her and played with them at the hearing. It was not apparent to the Tribunal that this was orchestrated by her or any other person in order to serve her interests in this application. The Tribunal is satisfied that she enjoyed having the soft toys with her and they offered her emotional comfort. Ms Barry gave evidence at the hearing that Mrs Ray would often bring her soft toys to the appointments she had with Ms Barry.[35] Others in the community would see these behaviours as highly unusual behaviour for a woman of Mrs Ray’s age and while this point is relevant to social interaction, such behaviours may impact on the quality of the communications between Mrs Ray and others in the community.
[35] Refer Transcript P-58.
The Tribunal notes Occupational Therapist X’s evidence about Mrs Ray’s self-report of her friendships:[36]
She did describe – I asked her who her closest friends were, and she said that they were the friends in the bible study group. She had concerns that there was difficulty – she had difficulty discussing things beyond the gardening. However, otherwise, she felt well-supported by the church and a member of the congregation.
[36] Refer Transcript P-106.
During the hearing, Mrs Ray was observed to give full and descriptive responses to questions. The Tribunal accepts there may have been element of Mrs Ray providing “scripted” answers or using particular words or phrases in answer to the questions put to her without having a complete understanding about what she was saying, as had been suggested by Ms Barry; but it was hard for the Tribunal to be certain about this based purely on the Tribunal’s observations at the hearing. Mrs Ray seemed to understand the substance of the conversations taking place.
However, the Tribunal observed several times during the hearing when Mrs Ray was asked complex or difficult questions, or questions which tested her memory, that she struggled with her answers and dealt with the question by deflecting and referring to her husband as being able to answer those questions. This was the case with questions where it was reasonable to expect a person of Mrs Ray’s age to be capable of providing an answer.
The Tribunal agrees with Occupational Therapist X’s observation that Mrs Ray comes across as a warm and friendly person. The Tribunal considers it unlikely that she would alienate others in the community by the way she communicates. Quite the contrary, the Tribunal considers that many are likely to find her manner of communication as endearing and would be willing to socialise with her. The favourable comments about Mrs Ray’s personality in her Year 11 school report convey an impression that she was well-liked by the other students (for instance, in the report given by the House Mistress of the boarding school). There is one caveat to this observation of the Tribunal, being that as mentioned above, the experience of communicating with Mrs Ray was akin to communicating with a person of a much younger age, such as a person in their early teens.
The Tribunal considers this is likely to limit the depth of communications she currently has with others of a similar age, in that the Tribunal considers it unlikely that they would genuinely regard Mrs Ray as a peer. This is reflected in the comments of Occupational Therapist X as recited in paragraph [‎80] above. Mrs Ray considered her friends in the bible study group as her closest friends, however, Mrs Ray’s evidence to the Tribunal was that she did not see those persons outside of bible study activities. It was also apparent from Occupational Therapist X’s observations that the conversation with those friends was limited to gardening as reported by Mrs Ray. The Tribunal is satisfied that it is unlikely that Mrs Ray has established strong friendships on an equal footing with those persons.
Ms Barry gave evidence at the hearing that based on her clinical observations, Mrs Ray usually presented, verbally, as about an eight or a nine-year-old, more so in respect of her receptive communication skills than her expressive communication skills.[37] Ms Barry placed Mrs Ray at an age equivalence of about a 10 to 12 year-old developmentally, or in terms of her maturity.[38]
[37] Refer Transcript P-85 and P-86.
[38] Refer Transcript P-92.

Based on the matters referred to above, the Tribunal is satisfied that Mrs Ray usually requires assistance from others in the activity of learning and at times, she is limited to the extent that she is able to learn. For this reason, the Tribunal concludes that Mrs Ray’s impairments are deemed to have resulted in a substantial reduction of her functional capacity in the activity of learning by reason of r 5.8(b) of the NDIS Access Rules.
Self-care
Thirdly, in respect of the activity of self-care, the NDIA relies on the following evidence given by Occupational Therapist X at the hearing:[53]
She’s independent in attending to personal hygiene, and I think everyone’s fairly – everyone agrees with that. I don’t agree with Ms Barry’s comments that she needs assistance with medications or attending to other self-care needs, because at exactly midday, or whatever time it was, she got up and made herself a sandwich and had her medications without any prompting from anyone. So the comment that she needs assistance with her medications, I’ve directly observed evidence to the contrary.
[53] Refer Transcript P-110, line 15.
The findings of the Tribunal set out in paragraph [‎111] in relation to cooking also apply here in relation to Mrs Ray’s capacity to feed herself.
The Tribunal notes that when managing Mrs Ray’s health, Mr Ray takes her to her medical appointments and apart from the counselling sessions, he sits in on those appointments with her. The Tribunal accepts Mr Ray’s evidence that he is required to attend those appointments so that he may answer questions by the doctors at times when Mrs Ray is unable to or struggles do so. The Tribunal also accepts Ms Barry’s evidence in her report dated 17 October 2019 where she provides the following opinion about Mrs Ray’s abilities in relation to this aspect of self-care:
She has great difficulties in being able to adequately inform medical practitioners and specialists on her current state of being, be it physical, emotional, or psychological.
At the hearing, Ms Barry further elaborated as follows:[54]
Ms Anderson: Can you explain to us how this impacts Mrs Ray’s capacity for caring for herself?
Ms Barry: If you can’t explain to someone else what’s happening for yourself, how are you going to access self-care, healthcare? Being able to have that language, which is something that I had been working on with Mrs Ray, in trying to find ways to describe things, and provide her with a level of language that she could, to an extent, hopefully convey across to others what is happening internally for her, either emotionally or psychologically or physically.
[54] Refer Transcript P-61.
The Tribunal considers from direct observation of Mrs Ray at the hearing, that her memory in respect of historical matters is significantly diminished and so is her ability to provide an explanation about complex matters. The Tribunal accepts Mr Ray’s evidence that he needs to provide this level of assistance to Mrs Ray, as he presently does, when she attends medical appointments, and not only because he is required to transport Mrs Ray to those appointments because she does not drive and public transport options are limited or non-existent.
The Tribunal is satisfied that Mrs Ray can attend to some aspects of self-care. By her own evidence, Mrs Ray can do the laundry and operate the washing machine so she can wash clothes and hang them out to dry. However, the Tribunal notes the complaint registered by her daughter’s “personal experience statement” that once the washing is done, Mrs Ray does not know where to put the clothes away (i.e. which cupboard or drawer they belong in).
Ms Zuidema also made the following observations in her report dated 17 October 2018, about the limitations on Mrs Ray’s capacity to do the laundry and other general comments about the state of cleanliness of the Ray household, including in Mrs Ray’s bedroom:
Jenny does the washing for the family; they have a fully automatic washing machine. Jenny needs assistance with folding the washing and putting it away in an organised manner; the washing usually ends up on the furniture on the floor.
Jenny depends on others to do the ironing.
…
Jenny tends to hoard items like plastic bags and other potentially useful things. She finds it hard to dispose of personal items, such as her large collection of stuffed toys. Jenny is unable to organise her belongings and they usually end up on the furniture or the floor. Once others have cleared the area Jenny can vacuum and mop the floors.
…
Tony or in-home support workers assist with making and changing beds.
Jenny has her own room and sleeps on the bottom of a bunk-bed. She uses a sleeping bag and the bed is crowded with stuffed toy animals.
Clothes are hung from the top bunk, obscuring the lower bunk. Jenny was somewhat embarrassed about the state of her room and stated that she does not know where to start to tidy it up or to make it a nicer place to be.
The Tribunal accepts Mrs Ray’s evidence that she can attend to her own grooming such as doing her teeth, bathing, washing her hair, going to the toilet and she can dress herself. However, the Tribunal notes the reports made by both of her daughters in their respective “personal experience statements” that Mrs Ray was pulled up by one of her daughters for having mistakenly applied make-up, instead of medicated cream, when her intention was to treat a skin disease caused by parasitic mites.
Mrs Ray gave evidence that she was aware of the medication that she needed to take each day for her mental health conditions and what time of the day she was required to take it. Occupational Therapist X noted one instance of Mrs Ray demonstrating this to her by taking midday medication without needing to be prompted. This was inconsistent with evidence given by Mr Ray. In his “personal experience statement” dated 14 December 2018, Mr Ray stated as follows:
I’d like a psychologist involved for Jenny that would help with Jenny on things that really mattered. Learning how to do things, important things, making positive changes and learning. Also medication being managed.
The Tribunal finds that Mrs Ray can manage her medications provided the requirements for doing so are laid out for her and remain simple. The Tribunal is satisfied that once they become complex, that Mr Ray is required to oversee the management of Mrs Ray’s medication.
Ms Barry told the Tribunal that Mrs Ray would not go into a shopping centre “even a local shopping centre” because of the amount of stimuli present for “someone like Mrs Ray. The fluorescent lights can be enough to distress her”. Clarification was sought from Ms Barry about the basis upon which she made this observation:[55]
Tribunal: And is that because she told you that?
Ms Barry: Yes, it is, and I’ve also had that from Mr Ray as well, in verification. She says that she gets too overwhelmed with all the people, all the smells, all the sounds, the movement, trying to then visually take in information whilst being overwhelmed by the other senses at the same time. And then, getting stuck in that sensory input causes distress in limbic system.
Basically, it’s your brain stem getting overwhelmed. And the next level up in the brain is your limbic system, and then you get to the top level, which is the cortex, the cerebral cortex, which is the thinking and logic. And she gets stuck between the brain stem and the limbic system, and that’s where we start to see meltdowns.
[55] Refer Transcript P-67 and P-68.
However, Mrs Ray gave evidence that at times she will go to the shops, although she was clear in conveying to the Tribunal that she did not like it. Mrs Ray said that sometimes she will go to the shops to try on clothes (to get the correct size). The Tribunal accepts Mr Ray’s evidence that he does the grocery shopping for the family and some of the time, he will also buy clothes for Mrs Ray.
On balance, the Tribunal is not satisfied that Mrs Ray is usually assisted to undertake self-care activities. The Tribunal does not find that the deeming provision in r 5.8(b) of the NDIS Access Rules applies to Mrs Ray in respect of the activity of self-care. However, the Tribunal is satisfied that that Mrs Ray requires a significant degree of assistance and oversight in respect of self-care and that this is provided by Mr Ray. The Tribunal considers that if that assistance and oversight was not provided by him, it is likely that Mrs Ray’s health and well-being would decline. For these reasons, the Tribunal is otherwise satisfied that Mrs Ray’s impairments have resulted in a substantially reduced functional capacity in the activity of self-care, even though the specific deeming provision under r 5.8(b) does not apply in this case.
Self-management
In respect of the activity of self-management, the NDIA relies on the following evidence given by Occupational Therapist X at the hearing:[56]
I think that in terms of my clinical observations, she was able to manage the domestic environment to the extent that she’s required to with current division of labour in that particular household.
[56] Refer Transcript P-111, line 35.
The Tribunal considers this to be an incorrect approach when assessing whether a person meets the access requirements under the NDIS. The assessment should not be qualified by reference to the “division of labour” in a “particular household”. It is acknowledged that this may be a consideration (i.e. what supports are reasonable to expect her family members to provide), among other considerations, at a later stage in deciding what supports are reasonable and necessary to be funded under the NDIS. But this is irrelevant in the context of the review of an “access” decision. The express objectives of the legislation speak of maximising a person’s independence. This will not be achieved by assessing, at the access stage, Mrs Ray’s capability by reference to what Mrs Ray and her family, as a unit, are jointly capable of achieving.
At the hearing, Mr Ray gave evidence that Mrs Ray is not involved “at all” in managing the household finances.[57] The Tribunal accepts this evidence. Mr Ray was asked during cross-examination whether the reason for this was that Mr Ray had assumed this role. Mr Ray denied this was the case and said, “Before I assumed this role, her mum used to do it for her, so it’s always been someone assuming that role.” Mr Ray confirmed that Mrs Ray did not have a current bank card but the reason for this was that when they had obtained one for her previously, she had struggled to use it and then decided that she did not want to have a bank card. The Tribunal accepts this evidence.
[57] Refer Transcript P-39.
Mr Ray gave evidence relevant to Mrs Ray ability to self-manage in his “personal experience statement” as follows:
Jenny is disorganised, she doesn’t put things away, everything is untidy, Jenny can’t appear to organise or tidy, she tries to but it gets more messy instead, I end up doing it or fixing what she’s done.
Jenny is like a third child.
In terms of determining daily routines, the Tribunal notes the following exchange during cross-examination of Mr Ray at the hearing:[58]
Ms Crick: Do you involve Jenny in the day-to-day decision-making processes, in terms of her daily routines?
Mr Ray: We do talk about things, definitely, but I make most of the decisions, only because, really Jenny doesn’t want to make those decision. She’d rather me do it.
…
Ms Crick: You’d say that Jenny’s activities are all decided and planned by you?
Mr Ray: No, she just mostly gardens, she loves to garden and she likes to do - just to keep up with a few of her friends. So, I can get her to her friends of course.
[58] Refer Transcript P-40.
In terms of Mrs Ray’s ability to attend to the gardening, being one of her hobbies or strong interests, the Tribunal notes and accepts the evidence of Mr Ray about Mrs Ray’s inability to judge distances when planting in the garden, as follows:[59]
Mr Ray: …With her garden, if you look at her plants when she plants things, she just can’t work out distances. She always - I told her I need 2 metres for the mower. The lawn has been, like, 1 foot or 2 foot or maybe a metre if I’m lucky. So she just doesn’t get it at all. Doesn’t know what to do. She just - she’ll end up getting it mixed up. Don’t ask me how she does it, I don’t - don’t understand it. I guess I’m not autistic I that sense, but she just can’t work out those sort of things.
Ms Crick: But once Jenny’s had somebody say to her how far plants should be grown apart, she’s quite capable of then following that in planting those plants, isn’t she?
Mr Ray: No. No, she always gets it wrong and then I end up having to move things or end up getting stuck into her about not planting them where I told her to plant them. It’s like she just can’t seem to work it out.
Ms Crick: But that doesn’t mean to say that - you don’t have to correct her work very often, do you?
Mr Ray: Most of the times I don’t correct it because again it’ll be just ongoing battles and that’s just not worth it. You’ve got to work out where you toe the line and where you’re going to battle all the time, and I end up just giving in most of the time because she just doesn’t get it right. It’s just like when we planted a whole heap of plants and I used to work at a campsite, and I got help in to do those plants, but the trouble is I found out that she’d actually put them in the ground. I dug all the holes and everything, and I noticed only a year later they all started dining, and I thought, what on earth’s going on, and then I realised she’d planted them all too deep, and they’re all natives so they die. And I showed her how to plant them, but she still planted them all too deep, like she’s got to overcompensate.
[59] Refer Transcript P-45 and P-46.
The NDIA referred to Occupational Therapist X’s observations of Mrs Ray that she may require additional time to navigate or complete certain tasks but contends that this is not evidence that her impairment results in “substantially reduced functional capacity” as per section 8.3.1 of the Operational Guidelines.[60]
[60] Refer Transcript P-98, line 5 and Exhibit “T1” at page 100.
At the hearing, Occupational Therapist X gave the following evidence specifically in relation self-management:[61]
Occupational Therapist X: Okay, so self-management. She – as I said before, so the cognitive skills underlying self-management she has to a basic level. The division of labour in her home is that her husband undertakes the finances but I see no reason, based on both my results and the results of Ms Barry, that she would be able to learn this skill if required. There may be some need for augmentation such as sue of Centrepay or direct deposit, but she could learn – easily learn those skills now if she needed to. The home environment was cluttered. But I’m quite skilled in performing squalor assessments, and I didn’t even pull out my assessment form because it wouldn’t have met the criteria for squalor. So it was just cluttered. There was a lot of stuff. But it didn’t – there was no rotting food. I understand that Ms Warden had been undertaking some de-cluttering with her, but that was based – I don’t believe – on Ms Ray’s request. It was something that Ms Warden suggested. And she, as I said before, in terms of self-management, she recognised that she needed to take a break a couple of times. She also recognised that she needed to take her midday medications. She was able to explain in detail the evening meals that she prepared. And at the end of the assessment, she took out some frozen chicken, or something like that, and explained what she was cooking that night. So that shows some planning as well. So I think that she – she said that she’d swept the floor. I think that in terms of my clinical observations, she was able to manage the domestic environment to the extent that she’s required to with current division of labour in that particular household.
Ms Crick: Does she usually require assistance from other people to self-manage?
Occupational Therapist X: No. She undertakes those tasks as part of a routine. And I know that it’s been mentioned before, by myself and by others, routine’s important to her. She said she didn’t enjoy it. But, you know, that’s okay. She did have respite workers who came in and did some things for her. I didn’t quite understand that, whether that was related to her or Mr Ray, or why that was in situ. Because, from what I could tell, she was able to do it, if she’d been provided with, as I said before, the kind of routine structures that would assist her. So, yes. She likes things done a certain way and her daughters do it differently. So I think that there’s certainly some conflict with family members, and that would benefit from further psychological intervention.
[61] Refer Transcript P-111 and P-112.
When asked again about Mrs Ray’s need for assistance, Occupational Therapist X gave the following evidence to clarify her opinion:[62]
Now, just to go back to your response, how would she cope without that support, at no point in my report, or today, have I suggested that she doesn’t need support, and I’ve just detailed how professional support, as I’ve talked about, the 16 sessions through a mental health care plan, plus five sessions through a chronic diseases plan, would be more than enough to deal with those variances in routine that can come along.
[62] Refer Transcript P-116.
The Tribunal does not consider an appropriate approach, when assessing a person’s degree of impairment or need for assistance, to do so by reference to the availability of supports or otherwise that could be provided through the public health system. Again, this is a consideration which will become relevant subsequently in determining what supports are reasonable and necessary for a person should they become an NDIS participant, but they should not form the basis for an opinion that a person’s impairments do not count (for the purpose of assessing whether the access requirements are met), because they can be addressed by other means.
Occupational Therapist X disagreed with Ms Barry’s assessment that Mrs Ray experienced “extreme difficulties with her executive functioning abilities”. Occupational Therapist X said this conclusion was inconsistent with the results of the WAIS assessment and Occupational Therapist X’s own assessment of Mrs Ray of being able to prioritise when making dinner or doing the laundry. Occupational Therapist X also said that Mr Ray was not always there to assist Mrs Ray, as self-reported by Mrs Ray.[63]
[63] Refer Transcript P-112.
Occupational Therapist X confirmed that she had only observed Mrs Ray at her property and had not made observations of her out in the community.[64]
[64] Refer Transcript P-116.
Occupational Therapist X did not accept Ms Barry’s observation that Mrs Ray was unable to adequately understand the concept of saving and budgeting. Occupational Therapist X acknowledged that this was an issue that Mrs Ray had raised but would not say that Mrs Ray was unable to understand the concept. Occupational Therapist X said at the hearing, “She’s perfectly able to understand the concept”.[65] The Tribunal does not accept Occupational Therapist X’s evidence. The Tribunal finds that Mrs Ray become overwhelmed when faced with complexity. She has not demonstrated any aptitude for maths. Her attention and concentration are impaired by her condition of ADHD as diagnosed by Mr Barry in 2006. The Tribunal accepts Mr Ray’s evidence that he does not let Mrs Ray go shopping because she will buy things they have not need for. Mrs Ray is unable to use a computer or access the internet. Taking all those matters into account and opinions expressed below by Ms Barry, which the Tribunal accepts, the Tribunal is satisfied that Mrs Ray is incapable of saving and budgeting.
[65] Refer Transcript P-113.
Ms Barry confirmed her evidence at the hearing that Mrs Ray was “unable to plan, organise, prioritise, or curb impulsive behaviours without the constant assistance of her husband”. Ms Barry was asked to provide examples and she gave the following evidence:[66]
Ms Anderson: Could you give us some examples of what you have seen yourself in relation to planning, organising and prioritising?
Ms Barry: A good example would be the planning and organising of meals. I worked with her in an attempt to try to expand the family’s diet to include slow cooker meals that did not require her to be at a stovetop continuously and have to maintain concentration, so that she could plan those.
Initially, we started off with recipes that had multiple ingredients. And she attempted those, but became extremely overwhelmed by being able to follow step-by-step instructions, even for slow cooker recipes, which are really fairly simple. It got to the point where she was having difficulty in being able to follow a list of ingredients, to be able to purchase those, just to put together the slow cooker meal, which is basically a buy-and-dump kind of idea.
Even that, trying to follow the steps of that became very difficult for her. We got to the point where we would break the meals down into two, three, maybe four ingredients, and being able to plan and organise at that level, because it was just otherwise too overwhelming for her, all the different steps. With regards to the impulsivity, anywhere she goes that has stuffed animals, she wants to buy all of them, specifically relating to Australian animals in particular.
Her husband has had to put in place a rule that she has to – I think it was either two or three, she has release control of, release hold of, to purchase one more, because she will just continually – to the point that her whole bed is covered, and there’s barely any space for her, which shows a lack of awareness of her own physical space requirements.
[66] Refer Transcript P-68.

Ms Barry was asked about the results of the Bender’s psychometric test performed on Mrs Ray in 2006 and whether the results were inconsistent with Ms Barry’s evidence regarding Mrs Ray’s spacial awareness. The Tribunal notes and accepts the evidence given by Ms Barry about this at the hearing as follows:[67]
On that test alone it says that it’s adequate visual perceptual skills, yet her planning and organisation was noted to be weak. So it is not just the visual perceptual nature, it’s also the planning and organisation that’s measured in the Bender.
[67] Refer Transcript P-77.
Ms Barry’s opinions are consistent with the observations of Ms Zuidema who drew the following conclusions in relation to Mrs Ray functional capacity in her report dated 17 October 2018:
Jenny Ray is a very friendly and caring lady with complex issues and significant care needs.
Jenny requires assistance with all daily living activities and participation in social interactions and community events.
She can follow short and simple instructions when a clear outline of the steps to follow has been provided and demonstrated.
She does not have the capacity to develop her own processes and is easily overwhelmed.
Jenny relies heavily on familiar/ well practiced activities and routines designed and reinforced by other people.
Jenny requires more assistance than family and informal networks can be expected to provide.
She needs daily, consistent and on-going help with organisation, establishing routines and completing them in a timely manner.
At the end of the cross-examination of Occupational Therapist X, the Tribunal notes the exchange that took place with Ms Anderson:[68]
[68] Refer Transcript P-123 to P-127.
Ms Anderson: You talked a lot about (indistinct) web site, about occupational therapy, about skilled professionals setting up routine and structures, doing things repetitively. And then you’ve stated that the most appropriate place for this to be funded is through mental health or chronic disease plans. Are you familiar with this document … about mainstream interface with mental health?
Occupational Therapist X: I have read it a while ago.
Ms Anderson: And so where it says: “Supports funded by the NDIS includes: assistance with planning and decision-making and household tasks; assistance to build capacity to live independently or achieve their goals; supports to participating in community activities”. These are supports to be funded by the NDIS and not the health system. How would you separate those out from all of the suggestions you’ve made today about what would be useful for Mrs Ray? Are these not exactly the types of supports that she needs?
Occupational Therapist X: I think that things are – what they’re talking about here is that they’re lifelong needs. I don’t think that she needs lifelong needs. As I said, she needs intermittent assistance with developing these new routines, and once they’re set, they’re set. So I think that she does need a little bit of input now, but I don’t think it needs to be ongoing. I think it’s a matter of setting up her system and walking away, and that’s what I have done with other clients, and it has been successful. It’s particularly successful with people who like routine. And I don’t think that this kind of support is necessarily required lifelong.
Ms Anderson: In terms of the documentation you’ve reviewed, has there ever been a time when Mrs Ray hasn’t required?
Occupational Therapist X: There’s a difference between required and received. So she didn’t receive support prior to her children being born, for example. That’s my understanding, until after they were born. So she was able to function, get a job, get a diploma, finish grade 12, be employed in a part-time capacity - - -
Ms Anderson: I will just correct you there. She didn’t finish year 12. She failed year 11. She had a job for a very brief period, if at all. So those - - -?
Occupational Therapist X: Okay, I must – I think that I did draw that from another report, which was obviously incorrect. But I do understand that she didn’t get a Diploma of Bible Studies. Yes? I do understand that she worked part-time with Mr Ray early on. Is that correct?
Ms Anderson: (indistinct)?
Occupational Therapist X: That’s my understanding, is that she did have a job and that she was able to maintain a part-time job. All of that without support. So the answer to that question is that really the factor that has changed her need for support has been her children, and particularly children that were born with ASD. And that’s why I believe that once the children are independent, which should be in a couple of years, then her need for support will go back to what it was before. In fact it should be less than it was before because she has had the benefit of all of this intervention over that time. My understanding is that the preponderance of all of that support was directed towards her care of her children and not her care of herself.
Ms Anderson: Okay. But isn’t having children and raising children a very normal life [stage] for somebody? This is not something that only Mrs Ray has done?
Occupational Therapist X: No, it’s not - - -
Ms Anderson: So the fact of needing support because life got harder and her skills were not at the same level, it doesn’t necessarily mean it’s not lifelong support, just that there are some periods which are more stressful than others. Is that not correct?
Occupational Therapist X: That is correct, but I would like to point out that she had two children with ASD. That is an incredibly difficult thing for anyone. Any parent who is neurotypical needs support and gets support for children who have ASD. That’s not related to their disability necessarily, it’s related to the disability of their children. And that is what has consistently come through, and it’s an important point that you raise, and I’ve raised it in my report. I do believe that she needs support with those girls, without having met them or having a deep understanding of their difficulties. But it is not to say that it’s a typical requirement in terms of raising children. Raising children with ASD is a completely different kettle of fish, and it would not be regarded as a normal life stressor.
Ms Anderson: Okay. Finally, the NDIS Act is about giving people with disability a quality of life that is more equivalent to the rest of the community. It’s about the right to access supports to provide them with equal opportunity to engage with the community. Do you consider that Mrs Ray at this point in time has the same quality of life, the same opportunities as other members of the community?
Occupational Therapist X: Yes. She’s engaging with the community in a rich and varied way. She’s volunteering at the local nursing home, she’s participating in a craft group, she’s actively engaged with her church community both on Sundays and on another day of the week. I think that she has a very rich life and that she is participating in the community more than most people I know. And she seems to be very happy. I don’t know if anyone has actually asked her, but she indicated to me that she was happy with her life. Her only difficulty was the communications that she was having with her daughters and the difficulty collating all of the information that’s being thrown at her from all directions. So her quality of life I think is good. She’s contributing to the household, she’s maintaining independent personal care….
Ms Anderson: We have heard a very different version of that this morning, but I understand that you had three hours and that that was what you were told, so I will leave it there.
In respect of Occupational Therapist X’s basing her assessment on what is available to Mrs Ray under the public health system, as already mentioned, the Tribunal considers that this is not the appropriate measure to be used in the context of reviewing an access decision. Further, the above exchange also highlights that Occupational Therapist X’s understanding of what Mrs Ray has achieved in her life was mistaken. Occupational Therapist X said that Mrs Ray had passed Year 12, but this is not correct, she had failed Year 11. Occupational Therapist X said that Mrs Ray was able to get a job but this is not accurate in that the problem has been that she has been unable to sustain paid employment, other than in an assisted or sheltered environment. Occupational Therapist X explained that Mrs Ray became unable to cope after she had her children. The Tribunal agrees with Ms Anderson’s reply to Occupational Therapist X during this exchange and considers that this is irrelevant, as having children, including children who may have disabilities of their own, is part and parcel of everyday life. The observation that Occupational Therapist X made about how “very happy” Mrs Ray was, is also inconsistent with Mr and Mrs Ray’s evidence indicating serious concerns about Mrs Ray’s interactions with her daughters, and it also ignores that Mrs Ray is required to take psychotropic medication every night to ease the symptoms of her anxiety and depression. This exchange between Ms Anderson and Occupational Therapist X caused the Tribunal to lose confidence that Occupational Therapist X’s opinions were based on an accurate understanding of Mrs Ray’s background, past achievements and her current state of mental health. This is a further reason why the Tribunal does not accept Occupational Therapist X’s evidence, except where indicated in these Reasons for Decision, in relation to the extent of Mrs Ray’s functional incapacity.
Ms Barry provided the following account of the general dynamic in the Ray household in her 17 October 2019 report:
Mr. Ray is the sole “adult” in the house and is required to manage all aspects of daily living within the family. He is at great pains in his attempts to provide a “normal” home for his wife and daughters, even with his wife’s disabilities and those also of his daughters.
Mrs. Ray has the developmental and cognitive style age of a young adolescent who is extremely easily led, excited, agitated, and stimulated. As such, her behaviours make it extremely difficult for her to engage in social settings and activities that would be expected of someone of her age.
The Tribunal accepts Ms Barry’s evidence as cited above. The Tribunal is satisfied that Mrs Ray usually requires assistance (by Mr Ray or others) in the activity of self-management. For this reason, the Tribunal concludes that Mrs Ray’s impairments are deemed to have resulted in a substantial reduction of her functional capacity in the activity of self-management by reason of r 5.8(b) of the NDIS Access Rules.
In conclusion, while it is only necessary for Mrs Ray to demonstrate that her impairments have resulted in substantially reduced functional capacity in one of the specified activities, the Tribunal is satisfied that this is so for at least four of the specified activities, namely, communication, learning, self-care and self-management. On this basis, the Tribunal concludes that Mrs Ray meets the requirements under s 24(1)(c) of the Act.
Section 24(1)(d) - the impairment or impairments affect the person's capacity for social or economic participation
Mrs Ray has been unsuccessful in maintaining paid employment for most of her adult life. One of Mrs Ray’s primary areas of concern is the social impact of her impairments on her ability to maintain positive relationships with her two teenage daughters. The Tribunal also considers that her condition impacts on her relationship with her husband and the extent to which she can from meaningful friendships with her peers beyond “parallel play” as described by Ms Barry.
The Tribunal is satisfied that the impairment resulting from Mrs Ray’s conditions have affected her capacity for social and economic participation. The Tribunal concludes that the requirement under s 24(1)(d) of the Act is met by Mrs Ray.
Section 24(1)(e) – support required for the person’s lifetime
There is no evidence before the Tribunal to suggest that medical intervention is recommended for Mrs Ray which may rectify her condition of ASD, which Mrs Ray has had since childhood. It is an incurable and lifelong condition by its very nature, as reflected in the DSM-V. Mrs Ray’s condition of ASD is permanent and the Tribunal finds that she will require support during her lifetime to enable her to engage independently in the activities of communication, learning, self-care and self-management (and social interaction, even though this was not raised by Mrs Ray), and to maximise her full inclusion in the community.
The Tribunal concludes that Mrs Ray meets the disability requirement under s 24(1)(e) of the Act.
CONCLUSION
The Tribunal concludes that:
(a)Mrs Ray meets the disability requirements under s 24(1) of the Act and therefore, she meets the “disability” access criterion under s 21 of the Act; and
(b)Mrs Ray meets the “age” and “residence” access criteria under s 21 of the Act.
Accordingly, the Tribunal sets aside the decision under review and in substitution, decides that Mrs Ray meets the access criteria under s 21 of the Act to become a participant under the NDIS.
I certify that the preceding 157 (one hundred and fifty seven) paragraphs are a true copy of the reasons for decision of Member K. Parker.
[sgd]……………………………
Associate
Dated: 8 September 2020
Date of the hearing:  15 June 2020
Date of final closing submissions:     27 July 2020
Advocate for the Applicant:                Ms Naomi Anderson
Solicitors for the Applicant:                 Villamanta Disability Rights Legal Service Inc
Advocate for the Respondent:            Ms Laura Crick
Solicitors for the Respondent:            Clayton Utz

[2020] AATA 3452

8 September 2020

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