RGQW and National Disability Insurance Agency (NDIS)
[2025] ARTA 605
•26 May 2025
RGQW and National Disability Insurance Agency (NDIS) [2025] ARTA 605 (26 May 2025)
Applicant/s: RGQW
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9301
Tribunal:General Member D Heron
Place:Brisbane
Date:26 May 2025
Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
.................[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – substantially reduced functional capacity criteria not met – whether applicant meets disability requirements – NDIS Act s24(1)(c) – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
Coventry and National Disability Insurance Agency [2024] AATA 259
KDYG and National Disability Insurance Agency [2019] AATA 3411
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523Power and National Disability Insurance Agency [2023] AATA 3357
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access < align="center">Statement of Reasons
BACKGROUND
RGQW (the Applicant) is a 67 year old woman who seeks access to the National Disability Insurance Scheme (the NDIS) on the basis of impairments from osteoarthritis and bilateral lower limb lymphoedema.[1]
[1] JTB, C5, Response to targeted questions, Dr A (General Practitioner) 20 October 2024, p173.
RGQW is not employed and is in receipt of the disability support pension (DSP). She lives in a rural town[2] and is the informal carer for an adult family member with disability.
[2] The town is identified on the Modified Monash Model as an MM5.
On 9 March 2023, RGQW made an access request to become a participant in the NDIS. The Access Request Form stated osteoarthritis, bilateral lower limb lymphoedema and cardiovascular disease as her primary disabilities. RGQW has since clarified that she is only seeking NDIS access on the basis of her physical impairments from osteoarthritis and bilateral lower limb lymphoedema.
On 25 July 2023, the National Disability Insurance Agency (the Respondent) determined RGQW did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) as the Agency was not satisfied her impairments resulted in substantially reduced functional capacity.
An internal reviewer confirmed this decision on 11 November 2023. On 6 December 2023 RGQW applied to the Administrative Appeals Tribunal (AAT) for a review of this internal review decision.[3] This is the Reviewable Decision before me.
[3] JTB, T1, AAT Application for Review of Decision, dated 6 December 2023 p30.
The hearing was conducted on 24, 25, 26 February 2025 via Microsoft Teams. RGQW was assisted and advocated for by her relative. The Respondent was represented by Mr A Hartnett of Counsel instructed by Ms Rosetzky, Maddocks. Following the hearing both parties made written submissions. Final submissions were received on 19 May 2025.
On the first day of hearing, I made an order under s70 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) prohibiting the publication of identifying details of the Applicant, hence the use of pseudonyms throughout the decision.
In determining this matter, I have considered all the material filed in the agreed Joint Tender Bundle (the JTB) that I have marked as Exhibit 1. At the hearing the Applicant also filed a 6 page document titled Table of Evidence, marked as Exhibit 2. I have also considered the parties written closing submissions. I will refer to the evidence that is directly relevant to my determination of this matter.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As RGQW’s request for access was made before 3 October 2024, the Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
LEGISLATIVE FRAMEWORK
The access criteria
Before turning to the issues, I note the following aspects of the statutory regime regarding access to the NDIS. To become a participant, the following access criteria in subsection 21(1) of the Act must be satisfied:
(1)A person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
The parties agree that RGQW satisfies the age requirements and the residence requirements. The main question before me is whether RGQW satisfies the access criteria in section 24 (the disability requirements).
Section 24 of the Act states:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the national Disability Insurance Scheme for the person’s lifetime, despite the variation.
RGQW agrees in their final closing written submissions with the Respondent’s contention that the early intervention requirements are not met and access for early intervention was not pressed at hearing.
The relevant rules to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act on whether a person meets the disability requirements or the early intervention requirements. The Federal Court in ReDrake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 held that relevant government policy should be applied by the Tribunal unless there is good reason not to do so.[4]
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
Issues
The issue that the parties disagree on is whether RGQW’s impairments result in substantially reduced functional capacity in relation to the mobility, self-care and socialising domains as particularised by the RGQW’s Statement of Facts.[5] The domains of communication, learning and self-management under s24(1)(c) are not relied on by RGQW.
[5] JTB, A2, Applicants Statement of Facts, Issues and Contentions undated p23.
Evidence
In support of her NDIS access request, RGQW provided evidence of medical records and letters dated 2004 - 2023.[6] The following evidence was also included:
·Orthopaedic Surgeon letter dated 25 August 2023[7]
·Endocrinologist letter dated 8 March 2004[8]
·Clinical Haematologist letter dated 7 April 2004[9]
·Clinical Haematologist letter 25 May 2004[10]
·Endocrinologist various letters dated 2004 - 2005[11]
·Specialist Orthopaedic Surgeon letter dated 10 February 2010[12]
·Cardiologist Response to Targeted Questions dated 19 April 2024[13]
·Physiotherapy Lymphoedema Discharge Summary.[14]
[6] JTB, T1A, T1B, T1E, T6.
[7] JTB, T9, Letter Prof C dated 25 August 2023 p128.
[8] JTB, T1B, Endocrinologist letter dated 8 March 2004 p40.
[9] JTB, T1C, Letter dated 7 April 2004 p41.
[10] JTB, T1D, Letter dated 26 May 2004 p42.
[11] JTB, T1F – T1I letters dated 2004 and 2005 p44 – 47.
[12] JTB, T1J, Letter dated 10 February 2010, p48.
[13] JTB, C2, Response to Targeted Questions Dr R dated 19 April 2024 p160.
[14] JTB, C4, Physiotherapy discharge summary dated 24 July 2024 p167.
RGQW
RGQW gave oral evidence during the morning of the first day of the hearing. Her evidence is summarised below:
· Described that she has been experiencing her physical impairments for the past 30 years beginning with osteoarthritis
· Lymphoedema started around 2004, following surgery regarding a different condition
· Lymphoedema makes her legs very heavy and uncomfortable, she experiences a very tight feeling in her legs
· She described experiencing pain all the time, the pain being worse when trying to sleep during the night
· Explained that she wears compression garments to push fluid out of lower legs as its classed as ‘rotten fluid’
· Described these garments as being very difficult to put on and off independently
· She has experienced recurrent ulcerations in her legs and has been hospitalised with cellulitis infections multiple times in the last few years
· Her last hospitalisation was in 2023 with an acute staph infection
· Cannot step over a maximum of 5cm height
· Undertakes ‘furniture walking’ inside of her home for mobility stability
· Medically advised to elevate her legs as often as possible
· After morning routine or outings typically tries to rest her legs in an elevated position on the side of couch
· Has experienced many falls, now utilises a hiking stick when mobilising outside of her home as recommended by her Orthopaedic Surgeon
· When she has fallen in prone position, she cannot return to standing without the help of another person or object as she cannot put any weight on her knees
· She currently lives on a property about a 15-minute drive outside of a rural town
· She described that she is required to undertake driving, standing and walking tasks out of necessity due to where she lives and due to her informal caring role for a family member
· Many local businesses in her town are inaccessible due to the uneven terrain and her inability to lift her legs over a maximum 5cm height
· When driving distances, she utilises cruise control to relieve her leg and knee pain and loses all feeling in her legs
RGQW also gave oral evidence detailing how she transfers in and out of her car independently. She describes the car door must be opened as wide as it can go, this enables her to have enough room to swing her leg up into the car and then pull her other leg inside. She explained that when a car is parked too close, she has had to ask strangers to reverse her car out so that she is able to get in to drive home.
RGQW also provided a written Statement of Lived Experience[15] and her Disability Impact Statement.[16] The statements detail the accessibility issues she currently faces in her home environment. Currently she cannot access the laundry of her home due to the entryway step. Due to this she relies solely on a family member to undertake all her laundry. RGQW also details that she cannot utilise her back veranda to enter or exit the home due to the stairs, only egress via the kitchen door ramp.
[15] JTB, C1, Applicant Statement of Lived Experience dated 29 March 2024 p149.
[16] JTB, C6, Applicant Disability Impact Statement undated p211.
In her Statement of Facts, Issues and Contentions RGQW states that she:
currently lives independently and is therefore frequently required to engage in activities of everyday life that she knows pose a risk to her health and wellbeing. That is the reality of the situation that the Applicant is in. The fact that the Applicant is therefore able, where required, to engage in mobilisations like those involved in the assessment by [Mr D] cannot be taken as evidence that engaging in these activities is safe or sustainable. In instances like her assessment with [Mr D], the Applicant strives to engage as wholeheartedly as possible in activities of daily life, even when the impact of such participation is serious pain and the risk of infection and illness. Another person in the Applicant’s position might reasonably refuse to participate in these activities at all, given the risk they pose to her health…This is not in the nature of the Applicant, however, who has been steadfastly determined to maintain her independence and mobility for decades, even at the cost of her health.
Evidence of Dr J, General Practitioner
Dr J, RGQW’s General Practitioner, gave oral evidence on the second morning of the hearing. His oral evidence is summarised below:
·Has been RGQW’s treating general practitioner since her teenage years
·Her conditions are progressive and are getting worse
·Has personally viewed her struggling when coming in for her appointments
·Current pain medication is limited to the lower dosages so that she can undertake her informal caring role for her family member
Dr J also provided a diagnostic letter[17] a medical certificate[18] and Response to Targeted Questions.[19]
[17] JTB, T5, Report of Dr J dated 30 May 2025 p117.
[18] JTB, T12 Dr J Medical Certificate dated 9 September 2023 p140.
[19] JTB, C5, Dr J Targeted Questions dated 20 October 2024 p173.
Evidence of Ms M, occupational therapist
Ms M, RGQW’s lymphoedema occupational therapist gave oral evidence on the morning of the second day of the hearing. Her oral evidence is summarised below:
·She has treated RGQW between August 2022 – May 2023
·RGQW is a high falls risk, the major concern is if a fall occurs and there was a hip fracture as RGQW would be a poor surgical candidate
·Has made recommendations to consider disability specific mobility aids such as a four wheeled-walker or powered mobility device
·States RGQW has been unable to acquire equipment due to lack of funding
·Her use of the hiking stick for mobility is unusual and Ms M would prefer to see RGQW use other disability specific items for support and stability
·Recommends a review by a specialised driver trained OT around RGQW’s physical difficulties with driving her car
·The ‘furniture walking’ inside the home undertaken by RGQW is not recommended as it places her at a high falls risk
·Recommends RGQW has a full functional capacity occupational therapy report to confirm her current needs with the expectation of some form of powered mobility device being scripted
Ms M gave evidence that she submitted the original NDIS access request form for RGQW. Ms M also gave evidence that she is a trained lymphoedema therapist and a full member of the Australian Lymphoedema Association.[20]
[20] Transcript day two page 40.
Evidence of Ms P, physiotherapist
Ms P, RGQW’s physiotherapist gave oral evidence on the morning of the final day of the hearing, her oral evidence is summarised below:
·Described her treatment period of RGQW from October 2020 – November 2023
·Recommends a motorised mobility device as beneficial when compared with current hiking stick, as would provide more independence at home and in community
·Motorised mobility device would take pressure off joints, knees, hips and back as well as circulatory system like the lymphatic system
Ms P provided a physiotherapy assessment completed with RGQW on 9 May 2023. The report indicates RGQW recent falls history, her walking tolerance of 20 meters with a walking stick and her 10 minute maximum standing tolerance.[21] A Response to Targeted questions dated 20 May 2024 was also submitted.[22]
[21] JTB, T4, Report of Ms P dated 24 May 2023 p115.
[22] JTB, C3, Response to Targeted Questions Ms P dated 20 May 2024 p163.
Mr D, occupational therapist
Mr D, an independent occupational therapist was called by the Respondent to give oral evidence on the morning of the final day of the hearing. His oral evidence is summarised below:
·Assessed RGQW in her home on 6 August 2024 starting at 10:20am – 1:45pm
·Assessment took place in RGQW’s home and in the surrounding yard
·RGQW mobilised within the home unaided, mobilised in the yard with the use of her hiking stick
·RGQW presented as very self-aware, vigilant and cautious with her mobility
·RGQW reported that falls hadn’t taken place in over 18 months
·RGQW is limited in terms of deep bend of legs mobility
·RGQW demonstrated transfers in and out of her car, on and off her bed, toilet, chair and lounge during the assessment
·Comments that RGQW undertook prolonged sitting during the assessment while they were chatting inside the home, up to an hour
Mr D provided his functional capacity report dated 4 September 2024.[23] His report can be summarised as follows:
·Traversing undulating ground is problematic for RGQW due to her falls risk
·RGQW is restricted as she cannot step higher than 5cm
·RGQW struggles to manage high physical intensity house cleaning activities
·Recommends low-cost assistive technology and equipment
·Recommends moving the washing machine or minor laundry modification and ramping
·Heavy lifting and carrying is unsuitable for RGQW due to her mobility and stability
[23] JTB, D1, Mr D Functional Capacity Assessment 4 September 2024 p215.
Consideration of Claims and Evidence
Impairment
The Respondent accepts in its Statements of Facts, Issues and Contentions that the Applicant meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of her physical impairments attributable to osteoarthritis and bilateral lower limb lymphoedema.[24]
[24] JTB, A1, Respondent’s Statement of Facts, Issues and Contentions dated 21 November 2024 p4.
In RGQW Statement of Lived Experience she outlines ‘I have experienced impairment to my functional capacity (particularly my mobility) based on long-standing medical conditions for at least 30 years, but in the last 15 years my functional capacity has been significantly reduced’.[25]
[25] JTB, C1 Applicants Statement of Lived Experience p154.
On the evidence before me, I am satisfied that RGQW has physical impairments attributable to her osteoarthritis and bilateral lower limb lymphoedema and that s24(1)(a) of the Act has therefore been met.
Permanency
To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent as subsection 24(2) of the Act provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person’s lifetime, despite this variation.
Rule 5.4 of the Access Rules states if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment it is considered permanent under the legislation. The definitions of ‘known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.[26]
[26] National Disability Insurance Agency v Davis [2022] FCA 1002 at 137-139.
The Respondent in its Statement of Issues Facts and Contentions accepts that the Applicant’s physical impairments attributable to osteoarthritis are permanent following the response to targeted questions by Dr A, General Practitioner. The Respondent also accepts that RGQW’s physical impairments attributable to bilateral lower limb lymphoedema are permanent on the written evidence from Dr J, Ms M and Ms P.[27]
[27] JTB, A1, Respondents Statement of Facts Issues and Contentions dated 21 November 2024 p9.
Having regard to RGQW’s treatment history including her medical interventions, reviews by an orthopaedic surgeon, occupational therapy and physiotherapy, I accept on the evidence before me that there are no further medical or evidence-based treatments that may remedy her physical impairments. I am satisfied that s 24(1)(b) of the Act in relation to RGQW‘s permanency of her physical impairments is met.
Substantially Reduced Functional Capacity
I turn to rule 5.8 of the Access Rules, a deeming provision[28] for substantially reduced functional capacity. I will need to consider whether the RGQW’s circumstances are captured in this provision. Rule 5.8 states that:
[28] Madelaine and National Disability Insurance Agency (2020) AATA 4025.
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
39.In respect of Rule 5.8(a) of the Access Rules ‘assistive technology’, ‘equipment’ and ‘commonly used items’ are not defined in the Access Rules or the NDIS Act.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency. In Rooney[29] the Tribunal identified what are to be considered ‘commonly used items’ for the purpose of Rule 5.8(a) of the Access Rules which are items that are:
·generally accessible;
·used without the need for complex or specialised customisation of installation;
·relatively simple to use; and
·relatively inexpensive.
[29] Rooney at [27].
Therefore, the Tribunal when considering the operation of Rule 5.8 is required to make an assessment ‘as a whole’ of the ‘degree’ to which RGQW can participate in the numerous tasks and actions relevant to the particular activity referred to in subsection 24(1)(c) of the NDIS Act. This assessment of what RGQW can and cannot do is functional and multi-faceted.[30] Furthermore, reliance upon the specific operation of Rule 5.8(a) requires that I consider whether the equipment that RGQW relies upon are considered ‘commonly used items’. I will do this under the mobility and self-care domains.
Does RGQW have a substantially reduced functional capacity in relation to the activities in subsection 24(1)(c) of the NDIS Act?
[30] Mulligan at [55].
The term ‘substantially’ in the context of ‘reduced functional capacity’ carries a significant threshold provided for by the Act that will need to be met.[31] Paragraph 24(1)(c) calls for more than ‘to simply show that functioning in the relevant area is affected’.[32]
[31] Rooney and National Disability Insurance Agency [2021] AATA 3523 at 22.
[32] Davis and National Disability Insurance Agency (2023) AATA 1437 at 65.
The Applicant does not press reduced functional capacity within communication, learning and self-management, and I therefore find no basis to consider there is substantially reduced functional capacity in these domains.
Socialising
The Tribunal in Madalaine referred to the description contained in the Access Guidelines that the socialisation domain as being ‘about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[33] Her professionals that came to give oral evidence all describe RGQW warmly and as being able to converse with them, noting the professional setting, however demonstrating her skills to do so. RGQW also gave oral evidence about being a member of a local volunteer club and her role as treasurer. [34]
[33] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at 87.
[34] Transcript – day one p3.
During the independent functional capacity assessment, RGQW interacted socially with Mr D and he described her as ‘a lovely person to have met and to have spent time with talking about her life’ in his oral testimony.[35] In the Access Request Form Ms M reported that RGQW does not require assistance in the domain of social interaction.[36]
[35] Transcript day three p 59
[36] JTB, T9, Access Request Form, p 47
RGQW described in her Statement of Lived Experience how her accessibility needs due to her physical impairments have cut her off from visiting with other family members as they live some distances away, meaning significant car trips and they live in high-set homes or homes with stairs.[37]
[37] JTB, C1 Applicant’s Statement of Lived Experience dated 29 March 2024 p157.
I acknowledge these are difficult circumstances however I find they arise from mobility and accessibility issues, rather than an inability to socialise. Having considered the evidence I have formed the view that the deeming rule is not enlivened and RGWQ does not meet the criteria of substantially reduced functional capacity in the socialising domain under s24(1)(c)(ii) of the Act.
Self-Care
I turn next to the issue of whether RGQW has substantially reduced functional capacity within the self-care domain. The Access Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
RGQW will meet substantially reduced functional capacity in the activity of self-care where there are ‘significant gaps’ in her capacity to maintain her personal health, safety and well-being. As the Tribunal explained in Madelaine in respect of the activity of self-care:[38]
Extrapolating from this provision, it may be said that having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.
[38] Madelaine at [121].
On the evidence before me, including RGQW’s oral evidence, she is able to toilet and shower herself. She did give sincere and intimate evidence about the fatigue and pain she experiences and the impact this has on completing these tasks. She also gave evidence about toileting and how the tight, extensive compression garments make things difficult with timing. She explained she had been receiving continence aids from the local women’s health centre however this centre had recently advised her that due to having an NDIS application pending, she was not longer eligible.[39]
[39] Transcript day one p18.
RGQW in her Statement of Lived Experience described she has ‘to be sitting down to get dressed. I do not have anyone to help me with dressing, which means that it takes a huge amount of effort. I cannot lift my legs to put on underclothes or stockings, which makes it very difficult to get dressed. The process of getting dressed in the morning often takes between 25 and 30 minutes simply to put my clothes on’.[40] RGQW referred to the use of modified strategies which she uses to undertake self-care activities including sitting down to start dressing herself.
[40] JTB, C1 Applicant’s Statement of Lived Experience dated 29 March 2023 p156.
Mr D observed RGQW transferring onto her bed from the sitting position and noted it was difficult to raise her feet up onto her bed. He recommended a leg lifter[41] due to the weight experienced in her legs, to assist in preserving her energy resources and in maintaining her independence.[42]
[41] JTB, D1 Mr D Functional Capacity Report dated 4 September 2024 p245 leg lifter example, approximate cost $35.00
[42] JTB, D1 Mr D Functional Capacity Report dated 4 September 2024 p 237.
Heavier house cleaning is a task that RGQW is unable to do as per Mr D’s assessment. He stated that RGQW ‘tries to complete heavier tasks such as vacuuming, mopping and bathroom scrubbing (as she does not have access to support of this nature) however she does not manage these tasks safely and based on my observations heavy house cleaning is partly neglected. In my opinion, she does not have the functional capacity for completing the heavier house cleaning tasks such as vacuuming, mopping, bathroom scrubbing’.[43]
[43] JTB, D1, Mr D Functional Capacity Report dated 4 September 2024 p240.
RGQW gave oral evidence that she can bend to try and shower herself but that she cannot wash the bottom of her feet as she cannot lift them.[44] RGQW gave evidence that her cellulitis risk is increased where her lower limbs cannot be kept clean and free from cuts or skin breakdown.[45] I accept that RGQW experiences difficulties in showering her lower half, however I find RGQW is able to undertake most self-care tasks effectively or completely with modified techniques.
[44] Transcript day one page 50
[45] Transcript day one page 50
Mr D reported that RGQW is independent with toileting and grooming and has ‘modified dressing tasks due to her incapacities. She sits to dress for stability. She is able to carefully reach her feet from a sitting position, which facilitates lower body dressing. By pacing dressing tasks, she is able to maintain her independence.’[46] In regard to medication management RGQW’s evidence is that she is able to manage her medications and does not require any assistance.[47]
[46] JTB, D1 Mr D Functional Capacity Report dated 4 September 2024 p240.
[47] JTB, D1 Mr D Functional Capacity Report dated 4 September 2024 p237.
Mr D recommended the use of a shower chair, handheld shower hose and long-handled sponge aids. I consider these recommended items to fit the definition of ‘commonly used items’. Mr D also considered that RGQW was able to chew, swallow, eat, and drink independently.
RGQW gave oral evidence that she does the house cleaning by trying to focus on one room at a time due to her pain and fatigue. After she has done one or two rooms, she explained that she needs to stop and rest due to exhaustion.
Mr D states that RGQW ‘has a very limited capacity for participating in the heavier or physically demanding house cleaning activities due to the effects of her medical conditions. She is able to complete short sessions of light cleaning of accessible surfaces, such as wiping the kitchen bench or vanity units. She is also able to complete spot cleaning using her stick vacuum’.[48]
[48] JTB, D1 Mr D Functional Capacity Report dated 4 September 2024 p240.
The Agency contends that despite RGQW having some difficulty with self-care tasks, as a whole RGQW can independently complete domestic tasks in a modified manner. In Foster it was noted ‘a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity’.[49]
[49] Foster at [88]
With her grocery shopping RGQW explained she is restricted to attending only a few physical stores that are accessible. She explains she can only manage small regular shops due to her lifting, standing and walking tolerances. RGQW explained that she has an established routine whereby she makes dinner for her family member each night. She paces meal preparation as required, taking into account her limited standing tolerances.
RGQW contended that her daily activities, including self-care tasks are only being undertaken out of necessity as she does not have support.
RGQW put this contention to Mr D, the independent occupational therapist during the hearing. Mr D explained that he was looking from a functional perspective of whether a person can either complete a task or cannot complete a task. He explains that ‘if you're functionally capable of doing an activity, then that in itself is evidence that the activity is being done… It's not theoretical, it's not hypothetical. It is actual.’[50]
[50] Transcript day three page 69.
RGQW relies on KDYG and NDIA [2019] being a relevant case. In this matter the Tribunal stated ‘that the Applicant struggled and survived before having the current level of assistance does not persuade the Tribunal that she does not require the assistance she is currently receiving’.[51] RGQW contends it is particularly relevant in her situation as the KDYG was found by the Tribunal to meet the disability requirements.
[51] KDYG AND NATIONAL DISABILITY INSURANCE AGENCY [2019] AATA 3411 AT 87.
I have carefully considered the necessity point raised by the Applicant. I find the current circumstances differ to the facts in KDYG in two main important parts. The first being that in KDYG the deeming rule under 5.8(b) was enlivened. This is because the Tribunal found that KDYG usually requires the assistance of another person to participate in activities, either by way of prompting or physically undertaking the task for them. Thus KDYG was deemed to have substantially reduced functional capacity. The second difference was KDYG relied on the domains of learning, self-care and self-management. In KDYG the mobility domain was not relied on, as their impairment was psychosocial.
I accept that RGQW undertakes all daily activities with modified pace, through pain and fatigue. I accept she has difficulty with her mobility. I accept that accessibility issues in her home and in the community do limit her daily living tasks and community participation.
I find that the necessity argument cannot succeed in circumstances where RGQW presently performs the greater part of the group of tasks that comprise the self-care activity domain. I am not satisfied that there are no supports to assist with some of the ‘heavier’ physical activities, in the context of the supports likely to be available under the aged care service system. Based on the totality of evidence I am satisfied that RGQW does not have significant gaps in her capacity to complete tasks within the activity of self-care. Having considered the evidence I am satisfied that RGQW does not meet the threshold of having a substantially reduced functional capacity to undertake the activity of self-care as a consequence of her permanent physical impairments.
Accordingly, I do not find that rule 5.8 is enacted nor that the threshold for substantially reduced functional capacity in self-care has been met under s24(1)(c)(v) of the Act.
Mobility
RGQW gave oral evidence regarding her frequent falls. She described a fall that occurred in 2023 in the backyard of her rural property. RGQW explained that she had fallen while outside and could not independently get back up. She described needing to yell continuously for her family member who was inside a fair distance away, to help. She could not be lifted up and the ride-on mower was moved for her to lean on, in order to very slowly move back to the standing position, a process that took many hours. RGQW described that she realised how dangerous falling in the backyard was, and that it was dangerous to lean on the mower.[52]
[52] Transcript day one page 39.
During the assessment, Mr D wrote that RGQW was observed to stand and walk for 45 continuous minutes.[53] RGQW raised an issue with this stating that she cannot walk for 45 minutes. Mr D explained ‘what I'm implying by continuous there is once we go into that mode of the assessment, that is what we're doing, room to room, activity to activity without a break.’ He further stated that by ‘the time we stood up and started walking around the property and the surrounding areas and came back in and then finished by the time we finished and sat back down for that sort of closure’. [54]
[53] JTB, Mr D Functional Capacity Assessment dated 4 September 2024 p251.
[54] Transcript day three page 32.
RGQW queried whether Mr D, during this 45 continuous minutes of walking, had accounted for the times RGQW was seated or semi-seated demonstrating sitting on the toilet, in the car or on the bed. Mr D explained that those were not considered rest periods, he considers them transfers that occurred during the 45 continuous minutes.[55] He furthered his explanation that ‘transfer is actually more demanding than just being on her feet’.[56] During the assessment he noted RGQW was also able to undertake the action of prolonged sitting for up to one hour while they talked inside the home.[57]
[55] Transcript day three page 53.
[56] Transcript day three page 54.
[57] Transcript day three page 57.
The Tribunal observes that at the time of Mr D’s assessment, RGQW was not using equipment or assistive technology inside the home, managing to feed, shower, transfer dress albeit via modified methods, albeit through pain and fatigue.
I note RGQW uses a hiking stick to mobilise when outside of the home, however I do not consider this deems her to have substantially reduced functional capacity with respect to mobility. I refer to the Tribunal’s decision in Coventry and National Disability Insurance Agency and the consideration of the Deputy President that the Applicant’s reliance upon his walking stick did not deem him to have a substantially reduced functional capacity with respect to mobility.[58]
[58] Coventry and National Disability Insurance Agency [2024] AATA 259 at 71.
Dr A provided a medical certificate dated 9 September 2023 where he indicated that RGQW would need to utilise a wheelchair to mobilise. In oral evidence Dr A clarified that he did not mean imminently, only that the wheelchair would give her more independence, and greater ability to mobilise.[59]
[59] Transcript day two p19.
Regarding the deeming provision, the evidence before me is that RGQW uses a regular walking stick along with a hiking stick when mobilising outdoors. I refer to Power and National Disability Insurance Agency, where the Tribunal considered a walking stick a commonly used item.[60]
[60] [2023] AATA 3357 at [71].
The Tribunal’s decision in Galea and National Disability Insurance Agency described a walking stick as a commonly used item which was easily accessible and did not require any ‘particular customisation or prescription’.[61]
[61] Galea and National Disability Insurance Agency [2022] AATA 2263 at 91.
I am persuaded by these views as I find on the evidence none of the items used by RGQW require any ‘particular customisation or prescription’.[62] On the evidence before me, all of the items are simple to use, purchased without the scripting of an allied health practitioner, physiotherapist or other allied health professional.[63] They are all relatively inexpensive and are able to be obtained commercially.[64] I am satisfied on the evidence that RGQW‘s walking stick fits the description of a ‘commonly used item’ for the purposes of Rule 5.8(a) of the NDIS rules.
[62] Galea and National Disability Insurance Agency [2022] AATA 2263 at 91.
[63] Coventry and National Disability Insurance Agency [2024] AATA 259 at 107.
[64] Power and National Disability Insurance Agency [2023] AATA 3357 at 47.
Some of the witnesses noted in their oral evidence that the hiking stick used by RGQW is an unusual mobility aid. I find that a hiking stick does not require any prescription or customisation. The Tribunal therefore considers it a commonly used item rather than assistive technology or equipment as referenced in rule 5.8.
RGQW nor the witnesses called have given evidence to the effect that RGQW usually requires assistance from other people to participate in the activity or to perform tasks or actions required to undertake or participate in mobility or self-care. I am not satisfied that the deeming rule is enlivened.
I am not persuaded that the evidence before me is that RGWQ is unable to perform mobility tasks and actions without assistive technology, equipment or home modifications. While Mr D gave oral evidence that home modifications are recommended, on the totality of evidence RGQW currently mobilises independently in all the rooms of her home. I note she cannot utilise her back veranda to enter or exit the home due to the stairs, only egress via the kitchen door ramp however she can enter and exit the home independently. I find the deeming rule 5.8(a) is not enlivened.
Therefore I am not positively satisfied that RGQW’s circumstances are captured by the deeming rule in 5.8(b) or 5.8(c) of the NDIS Rules.
Overall, on the evidence before me on mobility I am not satisfied that RGQW does have substantially reduced functional capacity in the mobility domain under s 24(1)(c)(iv) of the Act.[65]
[65] JTB, Part A, Respondent’s Statement of Facts Issues and Contentions 13 September 2024 p10.
As 24(1)(c) of the Act is not satisfied, it is not necessary for me to consider paragraphs 24(1)(d) or (e) of the Act.
Early Intervention Requirements
The evidence does not show that provision of early support will reduce RGQW’s future support needs, given that:
·RGQW reports that her physical impairments have steadily worsened over time; and
·Dr A expects that RGQW’s function will not be resolved with any further intervention.
The issue was not pressed at hearing, and I agree with the parties that RGQW does not meet the early intervention requirements pursuant to s 25 of the Act.
Conclusion
I find that RGQW’s impairments do not result in a substantially reduced functional capacity as required under paragraph 24(1)(c) of the Act. For that reason, I find RGQW does not meet access on the basis that the disability requirements of the NDIS Act are not met.
I acknowledge that this will be a difficult decision for RGWQ and her supporters to receive, given the time and energy they have invested throughout this entire process. My decision does not seek to diminish the nature of RGWQ’s impairments and the impact they have on her life, rather my finding is based on the requisite legislative criteria having not been met.
Decision
The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
Date of hearing: 24, 25, 26 February 2025
Final written submissions received: 20 May 2025
Applicant’s Representative: Self-represented
Counsel for the Respondent: Mr A Harnett, Counsel
Solicitors for the Respondent: Ms E Rosetzky, Maddocks
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