Rieser and National Disability Insurance Agency
[2024] AATA 176
•9 February 2024
Rieser and National Disability Insurance Agency [2024] AATA 176 (9 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2708
Re:Mr David Rieser
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member D Connolly
Date:9 February 2024
Place:Sydney
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...................................[SGD].....................................Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – dystonia – whether there is substantially reduced functional capacity – whether early intervention requirements are met – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
FBJV and National Disability Insurance Agency [2021] AATA 913
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION
Senior Member D Connolly
9 February 2024
BACKGROUND TO REVIEW
Mr David Rieser (the Applicant) was born in March 1966. He has DYT1 dystonia, a movement disorder that causes his muscles to involuntarily contract. His dystonia is a permanent, stable, genetic neurological condition.[1] It primarily affects his upper and lower limbs. He experiences widespread tremors, muscle spasms and contractures, with resting tremors of his hands and feet. The muscle tremors, spasms and contractures impact his ability to carry out activities of daily living.[2]
[1] Exhibit JB1 (JB1), A3.
[2] JB1, R3, page 447. This information is taken from a report prepared by Ms Melissa Sale, occupational therapist, at the request of the Respondent. It is generally consistent with other information before the Tribunal, including the information from the Applicant’s neurologist and physiotherapist, discussed in more detail below.
The Applicant lives with his wife and their two teenaged children who are both students. They live in a rented home in a Sydney suburb. The Applicant ceased employment in about 2018 or 2019, having previously worked in corporate leadership/management roles.[3]
[3] Transcript of proceedings, 30 October 2023, page 19.
In about October 2021, the Applicant made a request to become a participant in the National Disability Insurance Scheme (the NDIS), seeking access on the basis of impairments arising from dystonia, chronic pain associated with dystonia, and a “tib fib open compound fracture”[4]. In September 2021, in support of his request, Ms Catriona Clark, his physiotherapist, recorded that the Applicant’s main and only disability is congenital dystonia, with uncontrolled muscular writhing which impacts his functional capacity in the mobility, communication, socialising and self-care domains.[5]
[4] T-Documents (T), T4, page 36.
[5] Ibid, page 40.
On 7 December 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent or the NDIA), decided the Applicant did not meet the access criteria set out in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) because the delegate was not satisfied the Applicant’s impairments were permanent. An internal reviewer confirmed that decision on 19 March 2022. On 5 April 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision to refuse his request for access to the NDIS under the provisions set out in the Act.
LEGISLATION
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(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).
There is no dispute the Applicant satisfies the age and residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the Act.
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.
If the Applicant does not meet the disability requirements, I will consider whether he meets the early intervention requirements set out in section 25 of the Act which state as follows:
(1)A person meets the early intervention requirements if:
(a) the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant 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. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[6] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[7]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[7] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>
In Mulligan[8] Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.”[9] The Full Federal Court explained the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[10]
[8] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).
[9] Ibid at [55].
[10] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
The concept of ‘impairment’ is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[11] Pain is not an ‘impairment’ in itself,[12] but pain might be such that it limits particular bodily functions and therefore constitutes an ‘impairment’.[13]
[11] Mulligan at [51].
[12] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47].
[13] Ibid at [48].
ISSUES
There is no dispute that the Applicant has a disability that is attributable to a neurological impairment, arising from dystonia. Having regard to the evidence, discussed in more detail below, I agree with this view. Therefore paragraph 24(1)(a) of the Act is met.
While not mentioned in his Access Request Form, in August 2023 the Applicant provided evidence that in January 2020 he was diagnosed with major depressive disorder and longstanding generalised anxiety disorder (GAD). The Respondent has submitted that there is insufficient evidence for the Tribunal to find that the Applicant has an impairment(s) associated with these conditions, and therefore paragraph 24(1)(a) of the Act is not met with respect to any psychiatric condition.
While the Applicant already meets paragraph 24(1)(a) of the Act, I am of the view when considering how the Applicant meets this provision, the impairment or impairments need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced functional capacity (paragraph 24(1)(c)) operate not on the concept of conditions, but on the concept of ‘impairment’, which is generally understood to involve the loss of, or damage to, a physical, sensory or mental function.[14] Therefore I must also consider whether the Applicant has one or more impairments to which a psychosocial disability is attributable.
[14] Mulligan at [51].
As the Applicant meets paragraph 24(1)(a) of the Act, I will consider whether any of his impairments are permanent such that paragraph 24(1)(b) of the Act is met. The Respondent has now accepted that the Applicant’s neurological impairment is permanent.[15] Based on all the evidence before me, I agree with this conclusion. Therefore paragraph 24(1)(b) of the Act is met. However, if I find that the Applicant has one or more impairments to which a psychosocial disability is attributable, I will also consider whether I am satisfied that impairment or impairments are, or are likely to be, permanent.
[15] JB1, S1 at [9].
Another issue on which the parties disagree is whether the Applicant’s impairment(s) result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of those domains set out in subparagraphs 24(1)(c)(i) to (vi) and therefore does not meet paragraph 24(1)(c) of the Act.[16] Ms Clark submitted that the Applicant has substantially reduced functional capacity in mobility, communication, socialising and self-care. The Applicant has argued that his impairments are substantial for the purposes of this provision.[17] This is not the test I must apply. I must consider whether I am satisfied the Applicant has a substantially reduced functional capacity in any of the six activities set out in subparagraphs 24(1)(c)(i) to (vi) of the Act.
[16] JB1, S1 at [20]-[38], Respondent’s Closing Submissions dated 23 November 2023 at [56]-[150].
[17] JB1, S2 at [17]-[38].
The parties agree that the Applicant meets paragraph 24(1)(d) of the Act, the Respondent being of the view the Applicant’s permanent neurological impairment affects his capacity for economic participation. Having regard to the evidence discussed in more detail below, I also accept that the Applicant meets this provision.
If I decide the Applicant meets paragraph 24(1)(c) of the Act I will consider whether he meets the requirement set out in paragraph 24(1)(e) of the Act, that he is likely to require support under the NDIS for his lifetime. The Respondent has submitted that the Applicant does not meet this requirement because his impairment does not result in substantially reduced functional capacity to undertake any of the six activities.[18]
[18] Respondent’s Closing Submissions dated 23 November 2023 at [65]-[150].
If I am not satisfied the Applicant meets the disability requirements, I will consider whether he meets the early intervention requirements set out in section 25 of the Act. The Applicant has submitted that he meets these requirements, referring to Ms Clark’s recommendations regarding supports and her reference to a need for long term assistance, discussed in more detail below.[19]
[19] JB1, S2 at [45].
The Respondent contends that no intervention now could reasonably be described as ‘early intervention’ and his evidence supporting the request for early intervention supports is outdated. The Respondent also contends the management and coordination of treatment required for the Applicant’s conditions is the responsibility of his health care providers. It also formed the view that supports the Applicant seeks are more appropriately provided under a General Practitioner (GP) Management Plan.[20]
[20] Respondent’s Closing Submissions dated 23 November 2023 at [163]-[182].
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable?
I have considered whether the Applicant has a disability that is attributable to an impairment or impairments. As I have explained, these need to be identified with some precision.
The Applicant was assessed by Ms Melissa Sale, occupational therapist, on 5 April 2023 at the request of the Respondent. She produced a report[21] which I have read, and she gave oral evidence at the hearing. In her report Ms Sale listed the symptoms the Applicant lives with due to his dystonia which include involuntary shaking (tremors), muscle contractures and spasming of the upper and lower extremities, worsening with stress and fatigue, impaired mobility, jerky gross motor movements, impaired balance, a history of falls, difficulty with fine motor activities and coordinating movements, pain, weakness and numbness, fatigue, tiredness and impaired sleep.
[21] JB1, R3, pages 444-486.
The Respondent has accepted that the Applicant satisfies this requirement in relation to his neurological impairment arising from dystonia. However, since making his application to the Tribunal, in August 2023, the Applicant has provided information relating to the diagnosis made in about January 2020, by Dr Linton Meagher, his psychiatrist, of major depressive disorder and longstanding GAD.[22]
[22] JB1, S2G, page 42.
The Respondent raised concerns that this appeared to be the first time the Applicant provided evidence regarding these diagnoses. The Applicant has argued that it is not new information as it was mentioned in documents provided previously. I agree with the Applicant for the following reasons. I note in her report dated 25 September 2021, included in the T-Documents, Ms Clark stated the Applicant’s dystonia has “created significant emotional stress and affected his psychological wellbeing for which he receives additional health input...(the Applicant) would benefit from multidisciplinary team approach including psychological input for counselling…”[23]. I note in a letter dated 28 April 2020[24] from Dr Silberstein to Dr Meagher it is noted that the Applicant has commenced treatment with sertraline (an anti-depressant) for depression. That letter was filed with the Tribunal on 3 August 2022. Accordingly I am satisfied the Respondent has known about the Applicant’s emotional stress since filing the T-Documents in April 2022, and his depression, at least since August 2022. Also in a letter to the Applicant’s GP, Dr Claire Zheung, Dr Paul Silberstein, a neurologist, reported in May 2023 that the Applicant’s “depression and anxiety remain problematic.”[25]
[23] JB1, T3, pages 296-300.
[24] JB1, A1, page 224.
[25] JB1, S2A, page 30.
The Respondent has submitted that the Tribunal should not accept that the Applicant currently has an impairment attributable to a psychiatric condition for the purposes of paragraph 24(1)(a) of the Act. This is a reference to an earlier version of paragraph 24(1)(a) which referred to psychiatric conditions, rather than a psychosocial disability which is currently the test. I note in the Respondent’s Statement of Facts, Issues and Contentions (SFIC), it refers to the current version of paragraph 24(1)(a), which in my view is the version I must apply. Accordingly, while I accept the Applicant has a disability that is attributable to a neurological impairment, I will also consider whether he has one or more impairments to which a psychosocial disability is attributable, given he has provided evidence indicating he has been diagnosed with major depressive disorder and longstanding GAD.
At the hearing on 30 and 31 October 2023, the Applicant answered questions in relation to any psychosocial disability he may currently have. He indicated that he saw Dr Meagher from January 2020 for several months, every week or two weeks. He probably stopped seeing Dr Meagher regularly in 2021. He does not have an updated report from Dr Meagher. He thinks he most recently saw him in January 2023. Dr Meagher prescribed sertraline which he took up for a long time up until months ago. He decided to stop taking it; it was not on Dr Meagher’s advice. He trailed off the medication responsibly. He found it was unpleasant being on the drug. He asked about other drugs but Dr Meagher said all the drugs he could prescribe would have the same effect. When he saw Dr Silberstein in May 2023 he was not taking sertraline.[26]
[26] Transcript of proceedings, 30 October 2023, pages 31-32.
The Applicant denied that Dr Meagher recommended that he trial other antidepressant or antianxiety medication when he saw him in January 2023. He had suggested some other medications but when asked by the Applicant if they would be different in terms of how they made him feel “numb”, he said “no, they’ll all make you feel that way. And I said, I’d prefer to not then. And he said, I understand.”[27]
[27] Ibid, page 33.
The Applicant told me that he was referred to the community mental health team in May 2023. Dr Silberstein, wrote to the Applicant’s GP, on 15 May 2023, noting “Depression and anxiety remain problematic. Sertraline resulted in a sense of “numbness” and (the Applicant) stopped this medication…A copy of this letter has been sent by way of referral to the community mental health team…”.[28] Initially the Applicant denied knowing about this referral. Then he indicated Dr Silberstein thought he was in a bit of distress. He explained:
I was emotional because I was being presented – my medical history from the age of 12 was being presented to a group of 40 strangers who I’d never met…It was very emotional. I was being used - a guinea pig…because my condition’s so rare, most of them have never even met anyone like me. And Dr Silberstein thought it would be educational for a number of his and other staff to meet me. And it was very emotional.[29]
[28] JB1, S2A, page 30.
[29] Transcript of proceedings, 30 October 2023, page 35.
He told me that the person from the community mental health team did not recommend he be reviewed by his treating psychiatrist.
Ms Sale gave oral evidence at the hearing. I note that Ms Sale recorded that the Applicant experiences difficulties engaging in tasks/activities that provoke stress/anxiety (leading to symptom exacerbation)[30] and that his
…limited social engagements may be partially attributed to his dystonia (social anxiety regarding his tremors etc)…his ability to comprehend and understand new information when stressed/anxious is particularly impacted... (he) has difficulty with self-management activities during periods of stress and anxiety.[31]
[30] JB1, R3, page 447.
[31] JB1, R3, pages 448-449.
In its closing submissions the Respondent has submitted that Ms Sale has experience in working in mental health settings and assessing clients with mental health conditions and her evidence at the hearing was that, to her observation over the three hour assessment, the Applicant exhibited no symptoms of depression, GAD or social anxiety. Ms Sale denied the Applicant told her about those conditions during the assessment. I note however that Ms Sale recorded that the Applicant told her he has social anxiety regarding his tremors, so her recollection at the hearing was not reflective of the Applicant’s report to her. I am not satisfied that I should find, on the basis of one three hour assessment by an occupational therapist, that the Applicant does not have one or more impairments to which a psychosocial disability is attributable, particularly given Ms Sale herself recorded he experiences difficulties engaging in tasks/activities that provoke his stress and anxiety and he has social anxiety regarding his tremors.
I note the Applicant’s evidence that he was diagnosed by Dr Meagher with major depressive disorder in January 2020 and Dr Silberstein noted in May 2023 that his depression remained problematic. I accept he stopped taking sertraline of his own choice because it made him feel numb and that other medication has not been prescribed since. But I am not satisfied this means he no longer has depression.
On the basis of the evidence before me, I am satisfied that, along with his neurological impairment, the Applicant has impairments such as episodes of depression, emotional distress, stress, anxiety and social anxiety to which a psychosocial disability is attributable.
The Applicant raised in his SFIC the issue of whether the Respondent has accepted he has cognitive and physical impairments.[32] The Respondent omitted to address this question directly in the Respondent’s Reply to the Applicant’s SFIC.[33] However in addressing mobility the Respondent noted the Applicant had a motor vehicle accident in 1984 and sustained a serious compound fracture of the right knee for which he had surgery. The pain associated with the injury worsened and in 2021 he underwent tarsal tunnel release surgery to his right ankle. In 2022 he underwent a right total knee replacement. It was noted that while he reported he was recovering well from the surgery, he also reported restricted range of movement and stiffness in the ankle joint and stiffness and pain in his right knee. The Applicant provided two reports from his treating Orthopaedic Surgeon, Dr Ellis, dated 16 March 2021 and 16 March 2022, in which it was noted the Applicant had a reconstruction of his left foot in mid 2021. I also note that in May 2023 Dr Silberstein reported that the Applicant had reported “substantial functional benefit from left foot reconstruction and right knee reconstruction. Tremor has increased but mobility remains much improved”[34]. The Respondent contended that:
…to the extent that the Applicant experiences difficulties in mobilising, not all those difficulties are the result of his permanent impairment of Dystonia. The impairments arising from the motor vehicle accident when the Applicant was aged 17 appear to be a contributing factor to his difficulty in mobilising.[35]
[32] JB1, S2, page 15.
[33] JB1, S3.
[34] JB1, S2A, page 30.
[35] JB1, S3, page 219.
I accept Dr Silberstein’s evidence that the Applicant’s issues with mobility are now much improved, however he noted the Applicant’s tremor had increased.[36] I am satisfied the Applicant’s dystonia and associated tremors affect his movement and this affects his ability to perform physical activities. On this basis I accept he has a physical impairment.
[36] JB1, S2A, page 30.
With respect to the Applicant’s claim to have a cognitive impairment, I note he has provided an article about the impact of dystonia indicating it can affect cognition but the problems are usually mild.[37] While it is not for me to assess his cognition I note from the information he has filed, and his participation at the hearing, that he appears to understand the issues before the Tribunal and has engaged in a meaningful way with the material. I have not seen any evidence that the Applicant has undertaken a formal cognitive assessment. On the evidence before me, I am not satisfied the Applicant has a cognitive impairment.
[37] JB1, S2N, page 204.
Are the Applicant’s impairments permanent, or likely to be, permanent?
While finding the Applicant’s neurological impairment was not permanent at the time of the internal review, the Respondent has now accepted the Applicant meets paragraph 24(1)(b) of the Act in relation to his neurological impairment arising from hereditary dystonia.[38]
[38] JB1, S1 at [9].
The Respondent sent to the Applicant targeted questions for Dr Silberstein to answer, which related to treatment for dystonia. The Applicant did not forward those questions to Dr Silberstein, stating the answers had already been provided. He answered the questions himself, referring to Dr Silberstein’s letter of 28 April 2020. Having regard to Dr Silberstein’s reports, I agree with the view that the Applicant’s neurological impairment is permanent. It is not necessary for me to rely on the Applicant’s answers to reach this conclusion.
As the Applicant’s physical impairment flows from tremors associated with his dystonia I am also satisfied his physical impairment is permanent.
Accordingly the requirement in paragraph 24(1)(b) of the Act is met for the Applicant’s physical impairment.
The Respondent has submitted that the Applicant does not meet paragraph 24(1)(b) because his “psychiatric conditions are not permanent.”[39] This is not the test I must apply. I must consider whether the impairments to which a psychosocial disability is attributable are permanent, or likely to be, permanent.
[39] JB1, S3, page 208.
I note Ms Clark reported that the Applicant has received limited input from therapy services and would benefit from a multidisciplinary team approach including psychological input for counselling.
The Respondent has submitted that the Applicant has not exhausted all known, available and appropriate evidence-based treatments as required by rule 5.4 of the Access Rules, and that the impairments require medical treatment and review as required by rule 5.6. Those rules state as follows:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
I note the Applicant’s view that there is a psychosocial impact to living with acute pain and I have taken this into account.[40] While I accept the Applicant’s evidence that he saw Dr Meagher regularly in 2020 I note he has not seen him for a year, since January 2023. I take into account his evidence that the antidepressant made him feel numb, and he did not want to trial other medication because Dr Meagher indicated that all of the drugs that he could prescribe would have the same effect. However, as indicated by the Respondent in closing submissions, there are other treatments available for depression, anxiety and social anxiety, such as cognitive behaviour therapy.
[40] JB1, S2, page 16.
I note the Applicant’s evidence that the community mental health team were unable to accept him because there was nothing they could do for him.[41] I understand from the Applicant’s evidence that Dr Silberstein made the referral in response to the Applicant’s distress, indicating the Applicant was suffering an acute response to difficult circumstances. While I accept the team told the Applicant they could not do anything for him, I am not satisfied this is sufficient evidence to confirm that there are no other known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s major depressive disorder and GAD. The Applicant has not provided any recent or current evidence from Dr Meagher or any other mental health professional to confirm that all treatment options have been trialled and found to be ineffective. On the evidence before me I am not satisfied the Applicant’s impairments to which a psychosocial disability is attributable are, or are likely to be, permanent. Therefore rule 5.4 is not met.
[41] Transcript of proceedings, 30 October 2023, page 36.
As I have found rule 5.4 is not met, I am not satisfied the Applicant’s impairments to which a psychosocial disability is attributable are permanent.
As rule 5.4 is not met with respect to the Applicant’s psychosocial disability, it is not necessary for me to consider whether rule 5.6 is met. However I am of the view that, in the event the Applicant decides to make another application for access in the future, he should consider seeking further treatment and review so a determination can be made about whether the impairments to which a psychosocial disability is attributable are permanent or likely to be permanent.
Do the Applicant’s neurological and physical impairments result in substantially reduced functional capacity to undertake one or more of the specified activities?
In his SFIC the Applicant stated that his impairments are substantial for the purpose of paragraph 24(1)(c) of the Act. This is not the test. Paragraph 24(1)(c) of the Act requires that the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the specified activities. When making his application for access, a report from Ms Clark indicated that the Applicant has substantially reduced functional capacity in mobility, communication, socialising and self-care.[42] In his statement of lived experience dated 18 November 2022 the Applicant stated he has difficulty with various activities, such as attention to hygiene, dressing, preparing meals, shopping, yard work, writing, typing, standing, running, walking and using his hands. He indicated he does not have a social life and he does not travel. He listed various activities that he cannot do, which I have considered and discuss below.[43]
[42] T4, pages 40-45.
[43] JB1, A5, pages 234-236.
In his SFIC the Applicant has stated that he has lived with acute pain for 45 years which affects his ability to engage in social interaction, to learn and to self-manage. He has referred to a percentage of impairment loss. He has also stated “if the standard is what a person can or can’t do, then my impairment can only be considered substantial as there is not a single thing I can do even remotely as well as an able-bodied person. Not a single thing.”[44] This is not the relevant test that I must apply.
[44] JB1, S2, page 17.
The Applicant has also provided a comprehensive list of about 90 recreational hobbies which he cannot participate in, which includes relatively sedentary activities such as playing cards through to highly physical exercise such as surfing.[45] I am not persuaded it is necessary for me to make findings as to whether the Applicant can or cannot partake in these activities. In considering whether the Applicant has a substantially reduced functional capacity in any of the six domains set out in paragraph 24(1)(c) of the Act, I am guided by the Operational Guideline for each of those domains. The Applicant has made submissions about each of the domains in his SFIC, that he has reduced functional capacity in each.
[45] JB1, S2, page 18.
Rule 5.8 of the Access Rules sets out the matters the Tribunal must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
Ms Sale produced a Functional Capacity Assessment Report dated 1 May 2023 which I have taken into account in assessing the Applicant’s functional capacity, along with all the other evidence, including the oral evidence provided at the hearing by the Applicant and Ms Sale, in making my findings as to whether I am satisfied the Applicant meets this provision.
Communication
The Operational Guideline with respect to communication currently states as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
In support of the Applicant’s access application, Ms Clark stated that the Applicant has substantially reduced functional capacity in communication because he is unable to type or write due to upper limb impairments, because of dystonia.[46]
[46] JB1, T4, page 319.
I note at the time of writing her report in support of the application, Ms Clark stated the Applicant was working full-time in an office based environment.[47] However at the hearing he told the Tribunal he stopped working in about 2018 or 2019.[48]
[47] JB1, T3, page 296.
[48] Transcript of proceedings, 30 October 2023, page 19.
With respect to written communication, Ms Sale reported that the Applicant has difficulty with handwriting and using a computer/keyboard due to tremoring and shaking of his hands/upper limbs as a consequence of his dystonia. She indicated his writing was largely illegible due to his tremor. She recommended voice activated software to mitigate challenges he faces with written communication.
In his SFIC the Applicant submitted that he cannot write, type, or use sign language or gestures. However he admitted at the hearing that he typed his own submissions, “one letter at a time.”[49] The Applicant has claimed it can take him days or weeks to generate a typed document, however his SFIC is 15 pages long and includes tables and an index, he has filed a three page statement of lived experience and he has corresponded with the Tribunal by email. There is no evidence to suggest anyone else does this for him.
[49] Ibid, page 38.
I accept the Applicant may type slowly due to his tremor and he might benefit from voice activated software, however on the basis of his evidence that he typed his own statements for this review application, I am satisfied the Applicant can type.
With respect to writing, the Applicant indicated in his oral evidence that he can write letters, such as ‘A’, but that does not mean he can write. He put to the Tribunal questions about whether writing needs to be legible and at a certain speed. With respect to writing he had done on documents filed with the Tribunal he stated he “got there eventually, slow and steady.”[50] I note from documents provided by the Applicant, the WHO Disability Assessment Schedule (WHODAS 2.0)[51] and the Lower Extremity Functional Scale (LEFS)[52], which he told me he completed himself, that he was able to legibly write some words and numbers. He was able to clearly circle what he considered to be relevant answers on those forms. While the Applicant’s writing obviously appears to be affected by his tremor, I am satisfied he is able to write.
[50] Transcript of proceedings, 30 October 2023, page 58.
[51] JB1, S2I.
[52] JB1, S2J.
Ms Sale found that the Applicant is independent with verbal communication. At the hearing I observed the Applicant was articulate, appeared to understand the questions, and was able to coherently answer the questions asked. He also acknowledged that he has no limitation with respect to verbal communication.[53] At the hearing he confirmed he can use either Zoom or Skype to communicate by video, as he did at the hearing using MS Teams.
[53] JB1, S2, page 19.
I am satisfied that the Applicant can participate in communication related activities independently. While he may benefit from voice activated software to type, I am not satisfied he needs it as he was able to prepare typed documents for his review application, albeit slowly. I am satisfied that he is able to perform tasks or actions required to undertake or participate effectively or completely in communication activities, without assistive technology or equipment. I am not satisfied that any of the circumstances in rule 5.8 are met in his case, with respect to communication.
Having considered the Operational Guideline I am satisfied the Applicant is able to speak and write to express himself, and that he is able to understand people, and be understood.
On the basis of the information before me, I am satisfied the Applicant is able to participate effectively and completely in communicating. Accordingly, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Ms Clark reported that the Applicant needs assistance with social interaction because of psychological distress from dystonia, particularly in social settings where the associated impairment worsens. She recommended the Applicant requires psychological input.
Ms Sale reported that the Applicant said he has a few friends in Australia, but most of his friends and family live in the USA. He communicates with family and relatives overseas via email. He described himself as a recluse, who generally keeps to himself, with few friends with whom he socialises and that he spends most of his time at home watching TV. He occasionally attends school performances/events at his son’s school. He does not go out socially but indicated this was primarily due to a lack of finances and a “lack of need”[54] rather than any physical limitations due to dystonia. Ms Sale noted from his evidence “an element of anxiety”[55] when interacting in social settings due to concern over his dystonia symptoms. She opined that his limited social engagement may be partially attributed to his dystonia (social anxiety regarding his tremors, etc.), but in the main was due to a lack of need/desire to engage in social based activities.[56] She noted he was unforthcoming with information about his social activities.[57] She formed the view however that his social needs are largely being met.[58]
[54] JB1, R3, page 448.
[55] Ibid, page 460.
[56] Ibid, page 448.
[57] Ibid, page 476.
[58] Ibid, page 448.
The Applicant stated in his SFIC that his lack of social interaction is because he does not have access to the support he needs to effectively engage in social based activities. While he said he does not make or keep friends, he admitted he occasionally speaks to friends and family. He claimed however that they live on another continent and he is not engaged in his community or socially engaged. However he also stated he engages socially a few times a year but does not initiate social engagement. He acknowledged he participates in required school functions and that his wife occasionally arranges a social outing, but it creates anxiety for him and after two hours he leaves. He also stated that he has no desire/need to engage socially with people.[59]
[59] JB1, S2, pages 21-22.
In his oral evidence the Applicant indicated he has had difficulty with social interaction for 45 years. However he admitted that he made friends when he was at college and graduate school. He agreed that he was appointed as the vice-president and general manager at Georgia-Pacific, a large manufacturer of paper products, in California. He acknowledged a large component of his role was to manage people but claimed he was not confident in that role. He admitted he was employed by McKinsey & Company in a role that involved change (and so people) management but claimed that all roles involve people management. He acknowledged that he participated in corporate social functions in his employment and he did his best to navigate those social situations. He also acknowledged that, in part, he did not go out due to financial reasons, although he then claimed it was not about the money because there are things he could do for free. He indicated he has difficulty relating to other people because he does not do anything so there is nothing to connect with anyone on.
I accept the Applicant’s evidence that he engages in social activities only a few times a year, when his wife makes arrangements, and after two hours he leaves. I am of the view this may be because he does not have a need to socialise for any longer. I am not satisfied this indicates a substantially reduced functional capacity to socialise. In any case while I accept the Applicant may feel anxiety when he is out socially, I am not satisfied any social anxiety he might suffer has been fully treated, so I do not take this into account when considering whether he has a substantially reduced functional capacity in the domain of social interaction because of any permanent impairment.
I note the Applicant lives with his wife and children and there is nothing before me to indicate that those relationships are under any threat because the Applicant cannot cope with feelings and emotions in social situations. I accept the Applicant’s evidence that he keeps in contact with family and friends who live overseas. I am satisfied the Applicant is able to make friends and maintain friendships. I accept that he has had employment in senior positions where he was expected to participate in social functions. While the Applicant indicated that was not easy for him, I am satisfied he was, and is, able to do it and so has the capacity to participate in social activities when he needs to.
I am not satisfied the reason why the Applicant does not engage socially is because he does not have access to the support he needs to effectively engage in social based activities. His own evidence would suggest he is not inclined to engage socially because he feels he has nothing to offer. However he was able to make friends in the USA, before migrating to Australia, with whom he continues to have contact.
Considered overall I am not satisfied the Applicant’s physical or neurological impairments prevent him from participating in social activities, or performing tasks or actions required to undertake or participate in social activity, without assistive technology or equipment. I am of the view the circumstances in rule 5.8 are not met with respect to this domain.
Considered overall, while I accept the Applicant’s social life has been affected by his physical and neurological impairments, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake social interaction.
Learning
The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Ms Clark did not indicate that the Applicant requires any assistance to learn when completing his Access Request Form. However the Applicant has stated that he cannot practise and use new skills very well and that he is “often cognitively impaired and unable to learn and understand new things…my memory is significantly affected by my condition, making learning more difficult.”[60] He gave himself a percentage rating of impairment which I do not take into account as I am not required to making findings about a percentage of impairment.
[60] JB1, S2, page 20.
In the Applicant’s oral evidence he stated with respect to learning that there are times when he is quite clear but that he has trouble during periods of heightened stress and anxiety. He confirmed that he does not have any documentary evidence of any formal cognitive or psychometric testing.[61]
[61] Transcript of proceedings, 30 October 2023, pages 40-41.
In her report Ms Sale stated that the Applicant is mostly independent in this domain.[62] She reported that he has trouble with new learning activities during periods of heightened stress and/or anxiety, at which times he has trouble concentrating, focusing and interpreting new information/learnings. He reported withdrawing from new learning activities during periods of increased stress/anxiety. She stated “on a good day he is unrestricted with new learning.”[63] I am of the view this indicates his functional capacity is impacted by his anxiety rather than his permanent physical and neurological impairments.
[62] JB1, R3, page 460. While her report states he is “mostly dependent” she corrected this at the hearing and told the Tribunal that she intended to report that he is “mostly independent”.
[63] JB1, R3, pages 460, 470 and 477.
The Applicant’s treating neurologist does not make any comment about any learning or cognitive impairment. The Applicant has not provided any evidence that he has had a cognitive assessment. While it is not my role to undertake a cognitive assessment, I note his statement of lived experience and his SFIC set out his submissions in a cohesive and ordered way, and the Applicant was able to undertake research about various assessment tools, complete them and provide them with his review application. He also provided various articles and documents relating to his condition.[64] There is no evidence before me to indicate he was assisted in the preparation of any of the material he has provided in relation to his review application.
[64] JB1, S2H – NDIS Selection Tool Analysis, S2I – WHODAS 2.0, S2J – Lower Extremity Functional Scale., S2K, S2L, S2M, S2N
On the evidence before me I am not satisfied the Applicant meets any of the circumstances set out in rule 5.8 with respect to the activity of learning.
Considered overall I am not satisfied the evidence supports the assertion that the Applicant’s neurological or physical impairments impact, in any substantial way, his functional capacity to learn. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.
Mobility
The Operational Guideline with respect to mobility currently states as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
When completing the Access Application Form, Ms Clark indicated the Applicant has substantially reduced functional capacity in the mobility domain as he finds it “very difficult with uneven mobility, walking up or down hills or on grassy surfaces.”[65] She indicated he needs assistive rails for safety as he is unable to manage without significant falls and injuries on uneven environments. In her view he would benefit from trialling equipment as he is currently unaided.[66]
[65] JB1, T4, page 318.
[66] Ibid, page 320.
Ms Clark provided a written report dated 25 September 2021 which addresses the Applicant’s mobility capacity.[67] I note however that this report was prepared prior to the Applicant’s May 2022 reconstructive surgery on his right knee, reported by Dr Silberstein as resulting in much improved mobility.[68]
[67] JB1, T3.
[68] JB1, S2A.
Ms Clark provided another letter in August 2022 in which she reported that the Applicant’s dystonia “particularly affects his fine motor control, mobility and posture in his feet and will long term result in increasing disability and reliance on others or technology to maintain independence.”[69] She undertook a High Level Mobility Assessment and found his score indicated a significantly lower ability to engage in high level mobility and community ambulation.[70] However her report does not refer to, or appear to take into account, the Applicant’s knee replacement surgery in May 2022 or his postoperative physiotherapy.
[69] JB1, A4, page 232.
[70] Ibid.
In his statement of lived experience[71] the Applicant stated that his legs shake uncontrollably when he stands at the sink. He has become hypervigilant when walking on a tiled surface due to previous falls. However, generally, he can dress himself without sitting down. He can stand for 15 to 20 minutes but his legs shake. He usually leans, rather than stands. He cannot lift pans with one hand. He can drive himself to the shops to purchase household goods. He leans on the shopping cart while standing. He has difficulty carrying the groceries the 30 metres from the car to the house and up a flight of stairs, but he can do it. He can do yard work for short periods, but his hands hurt. Work above his shoulders leads to spasms. He can walk slowly but balance and fatigue are a problem as he loses his balance and occasionally falls. He has pain, weakness and numbness in his hands.[72]
[71] JB1, A5.
[72] Ibid, pages 234-235.
In his SFIC the Applicant stated he meets the “minimum mobility standard of being able to access transport and mobilise around the home”,[73] but claimed he does not use his arms and legs effectively. He gave himself an impairment rating, expressed as a percentage, which I do not take into account because it does not assist me in applying the test set out in paragraph 24(1)(c) of the Act. He indicated that while he can mobilise, he does it with more difficulty than an able-bodied person. He claimed that the activities Ms Sale assessed are “survival activities”[74] and these activities are modified in his case. He assessed himself using the LEFS tool and concluded he has a significant impairment, which is not the test I am required to apply. He noted he cannot squat, stand for an hour, run on even or uneven ground, make sharp turns while running or hop.[75] While indicating some incapacity, I am not persuaded his inability to undertake these activities confirms he has a substantially reduced functional capacity in mobility.
[73] JB1, S2, page 20.
[74] Ibid.
[75] Ibid.
In his oral evidence[76] the Applicant confirmed he leaves the house to do the shopping and go to medical appointments. He walks his dog. He is physically capable of walking to the coffee shop. He walks unaided around his home and in the community. He can transfer on and off a chair, the toilet and his bed unaided and without the assistance of another person. He can walk to the local train station which is about 10 minutes away and can do so unaided. He agreed it is about 850 metres from his home. He always drives to his medical appointments. He drives for up to 25 to 30 minutes. He has no concerns about whether he can drive safely. While he does not use public transport, he is capable of doing so. He stated however that he does not do anything like an able bodied person but he does not need aids; he just needs modifications.
[76] Transcript of proceedings, 30 October 2023, pages 56-58.
The Applicant provided WHODAS 2.0 and LEFS assessments, which he completed himself indicating his capacity across a range of activities. There was some discussion at the hearing about whether this was evidence I can take into account, given the assessment was not undertaken by a qualified health professional. The Respondent submitted in the SFIC that the Tribunal should give the evidence little or no weight because the assessments were administered and calculated by the Applicant himself and not by the independent occupational therapist, suggesting Ms Sale did not think they were the appropriate assessment tools in his circumstances. I tend to agree with the Respondent. While I have considered the assessment results I give them little weight, compared to the Applicant’s statement of lived experience and oral evidence, and the other reports prepared by qualified practitioners.
Ms Sale reported the following about the Applicant’s functional capacity in the mobility domain:
…(the Applicant) is able to mobilise throughout all areas of his home and yard, and can independently access his community, by either driving or utilising public transport. Whilst I don’t believe he requires any formal support/assistance in this domain, he may benefit from assistance in the future should his mobility change in any way. He would also benefit from engagement of an OT driving assessor to comment on his safety and capacity to drive, and comment on any equipment and/or vehicle modification needs.
…
(he was) able to access all areas of his internal and external home environment. He mobilised unaided. He had a slight antalgic gait. He favoured his right leg, leaning to the left when walking and standing. He appeared to stumble at times as he walked. There was some clumsiness observed to his gait, due to his dystonia. On one occasion, he lost (and quickly regained) his balance. His pace slowed as he walked along uneven surfaces of the grassed lawn and outdoor paved areas of the property. He otherwise moved at a reasonable pace. In standing, he was observed to lean against external supports (i.e. table, benchtop etc). There was obvious shaking of the legs observed in standing. The intensity of the shaking appeared to increase the longer he stood.[77]
[77] JB1, R3, pages 460 and 470.
Ms Sale also reported that the Applicant was able to reach for cupboards and shelving above head height, and at floor level, but had a reduced capacity for overhead lifting and carrying. Her report includes photographic evidence of the Applicant traversing the stairs at this home and transferring in and out of a bath to shower. She also reported that she observed the Applicant independently transfer on and off the toilet, dining chair and lounge and get himself up off the ground. She was satisfied he was able to access his community and walk to public transport, including to the train station about 10 minutes from his home. She reported that he denied difficulties with walking to public transport. While the Applicant reiterated that he could drive in an unrestricted manner, she formed the view an assessment was warranted given his foot tremor.
Having considered all the evidence before me, in assessing what the Applicant can and cannot do, I am satisfied his mobility is affected by his tremors, pain and balance issues. I accept he makes modifications such as leaning when standing and moving more slowly. However some reduction in capacity is not the same as substantially reduced functional capacity. Having considered all the evidence and submissions regarding what the Applicant can and cannot do in relation to mobility, I make the following findings.
I am satisfied the Applicant is able to transfer independently from a chair, the toilet, his bed and the shower. He is able to stand for 15 to 20 minutes but his legs shake. He leans when standing for prolonged periods. He is able to walk independently and unaided around his home and in his community. I accept he can walk to his local train station which is about 850 metres away. He is able to traverse stairs in his home. He is able to get up off the floor. While carrying above his head is limited, he is able to reach above head cupboards in his home. He is able to drive for 25 to 30 minutes. While I accept that he does not use public transport I accept that he is able to do so.
I accept the Applicant is not able to stand for prolonged periods without leaning for support. I accept he cannot squat, run on even or uneven ground, make sharp turns while running or hop. While I accept the Applicant sometimes stumbles because of balance issues I note he does not use commonly used aids such as a walking stick or frame to assist his balance.
In assessing the Applicant’s functional capacity with respect to rule 5.8, I accept the Applicant mobilises with pain and some shaking. However, having considered what he can and cannot do, and the assistance he requires, I am satisfied the Applicant is able to mobilise and perform tasks or actions required to mobilise. Therefore rule 5.8(c) is not met. With respect to rule 5.8(b) I am of the view the Applicant is usually independent as he does not usually require assistance from other people to mobilise.
In considering whether the Applicant is unable to mobilise effectively or completely, or to perform tasks or actions required to mobilise effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications, I must apply the test set out in Foster, in which the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of (the activity).”[78] As such, the activity to be assessed is mobility as a whole, not a specific task or action within mobility.
[78] Foster at [65].
Taking into account the Court’s guidance in Foster, considered overall, while I accept there are some limitations on the Applicant’s capacity to mobilise with respect to squatting and running, and he makes some modifications such as leaning when standing, I am not satisfied his impairments result in the Applicant being unable to participate effectively or completely in mobilising, or to perform tasks or actions required to undertake or participate effectively or completely in mobilising, without assistive technology, equipment (other than commonly used items) or home modifications. Therefore rule 5.8 is not met.
I have considered whether the Applicant has a substantially reduced functional capacity in relation to the mobilising activities listed in the Operational Guideline. I am satisfied he can move around his home and community, transfer independently and use his arms and legs. I am not satisfied he needs a high level of support from other people with respect to mobility as a result of his impairments. I note he is not using any prescribed assistive technology, equipment or home modifications. Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care currently states 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.
Ms Clark stated in the Access Application Form that the Applicant has substantially reduced functional capacity in the self-care domain as his balance impairment results in a significant falls risk during heavy domestic tasks and showering without equipment. She recommended seated showering and night lights. She stated that the Applicant is reliant on his wife for heavy domestic tasks such as gardening, cooking and cleaning. In her report dated 25 September 2021 she stated that the Applicant can do up buttons with a particular technique, can open jars with a jar opener, and garden by pacing himself. She stated that, while he can cook, he takes more time and experiences pain with manual tasks. I note however that the Applicant’s functional capacity has likely changed since then because of his knee surgery, and surgery he had on his hand in about April 2022.[79]
[79] Transcript of proceedings, 30 October 2023, page 23.
In his statement of lived experience the Applicant stated he has difficulty stepping in and out of the shower and must hold on. He has trouble putting toothpaste on his toothbrush, he cuts himself when shaving and cannot trim unwanted hair. He can dress independently, without sitting down but sometimes his toes curl and he cannot put on his shoe. He struggles with buttons. When preparing meals he can only stand for 15 to 20 minutes and he usually has to lean. He cannot open jars. He drops and breaks things. He cannot lift a pan with one hand. He is prone to accidents. He is able to go shopping for household goods but struggles to carry and walk the groceries from the car to the house and up a flight of stairs.
In her report Ms Sale stated the Applicant is independent in toileting and handwashing. He demonstrated transferring in and out of the bath for access to the shower. He stands to shower but holds on to the glass recess. He has trouble with buttons and zippers. He dons his pants and underwear in a seated position. He puts toothpaste on his toothbrush but it can be messy. He is able to brush his teeth. At the time of his assessment by Ms Sale the Applicant had a full beard. He reported struggling with shaving and facial grooming (using clippers and tweezers) due to shaking and tremoring of the hands. He reported cutting himself while shaving. He reported significant challenges in cutting his toenails and has cut his skin above his toenail.
Ms Sale reported that the Applicant has difficulty with aspects of meal preparation due to his dystonia and is prone to cuts and burns. At the assessment, he was able to access the fridge, microwave, stove, oven and reach for commonly used items in the kitchen. When working at the bench he leant against the benchtop for support. He needs to take breaks when cooking due to leg shaking associated with static standing. He was able to access a saucepan and replicate cooking on the gas stove top but used two hands to hold the saucepan to help with stability/control.
Ms Sale reported that the Applicant replicated chopping using a knife. He modifies the way he chops to manage the risk of cutting himself. He was able to chop items and prepare food in the kitchen but Ms Sale identified an element of risk in cutting or burning himself, given the tremoring and shaking in his hands and arms.
Ms Sale reported that the Applicant is able to go to the shops and complete the grocery shopping. He drives and uses a trolley at the shops, leaning on the trolley to maintain balance. He has trouble with lifting and carrying heavy bags. He carries a bag in each hand to maintain balance. He has trouble carrying bags up and down the stairs.
Ms Sale reported that the Applicant is able to clean and wipe down the bath, shower and toilet areas, and the kitchen and surface areas. He reported that vacuuming is typically done by his wife or children, as he finds it challenging. He can pack away and tidy lightweight items but has difficultly with lifting and carrying heavy loads and handling fragile objects. He opens jars, lids and cans with opening aids.
Ms Sale reported that the Applicant is able to access the laundry, and load clothing in/out of the front loader washing machine and dryer. He uses the dryer because he has difficulties handling pegs to hang out washing and has impaired balance with overhead reaching. He is able to change bed linen. He demonstrated washing dishes in the sink but leant against the bench because of shaking legs.
Ms Sale reported that the Applicant is able to mow the lawn and attend to light gardening duties by pacing himself. He has trouble starting the petrol mower at times due to shaking and weakness of the upper extremities. He was observed independently accessing the lawn mower and moving it from the front to the back of the yard.
Ms Sale formed the view the Applicant needs assistance in the self-care domain as he has a resting tremor which makes it challenging to prepare food in a safe manner and he requires assistance with heavier tasks such as vacuuming and lawn mowing. She also formed the view he requires assistance with grooming, such as shaving and toenail cutting. She recommended an occupational therapist assessment and aids and assistive equipment that could assist the Applicant to reduce risk of injury in food preparation, such as a food processor, a kettle tipper, a knife guide and finger protector and heat resistant gloves.
In his SFIC the Applicant stated he is not independent in 17 of the 20 self-care activities referred to in Ms Sale’s report: “transfer to shower, wash body, dress upper, dress lower, brush teeth, brush hair, cut nails, prepare food, eating, shopping, cleaning, pack away, light laundry, heavy laundry, clean kitchen, yard care.”[80] I note Ms Sale assessed the Applicant as utilising a modified technique and/or aids to complete several self-care tasks. However she did not report that he receives physical assistance with any of those tasks.
[80] JB1, S2, page 22.
At the hearing the Applicant told me that he shaves without the assistance of another person but sometimes cuts himself. He does not like to use an electric shaver because he used one many years ago, and it did not give him a “good shave”[81]. He currently cuts his own toenails using a toenail clipper. He had not heard of advice that people who have tremors should use a nail file rather than a toenail clipper but thought it was a possibility that he could try but would find it annoying because he would be “constantly”[82] filing his toenails as his nails grow quickly. The possibility of a GP Management Plan with podiatry services funded by Medicare was discussed but he raised the issue of whether Medicare would cover all the podiatry consultations he thinks he would need.
[81] Transcript of proceedings, 30 October 2023, page 66.
[82] Ibid.
With respect to cooking the Applicant indicated he cut his finger the week before the hearing. When asked if he had trialled any of the items suggested by Ms Sale to reduce the risk of injury, the Applicant stated “They all cost money, don’t they?”.[83] When I asked again if he had trialled any items he stated “I don’t recall what they were.”[84] He indicated that was why he was applying for NDIS. When asked if he has investigated any items to ensure that he prepares food safely he stated “that was something that I was hoping the NDIS could help me with, was to help me understand what I could do to prepare food more safely.”[85]
[83] Transcript of proceedings, 30 October 2023, page 62.
[84] Ibid.
[85] Ibid, page 63.
When asked if the Applicant had considered buying prechopped vegetables, he indicated that he would not do this because once you cut a vegetable it starts to deteriorate and he does not want to “put junk into my children’s bodies or spend the extra money required to buy precut vegetables... So yes, would it be safer? Yes, it would be safer but it would be unhealthy and it would be financially burdensome.”[86]
[86] Ibid, page 64.
The Applicant told me he likes doing the lawn mowing and he would prefer to do it himself.
When asked if the Applicant had considered Ms Sale’s recommendation that he have an occupational therapist undertake an assessment in his home, a session that he could access using his GP Management Plan, he stated “No. What are they going to do? Tell me where to put handrails? That’s not what I need.”[87]
[87] Ibid, page 63.
At the hearing Ms Sale explained why an occupational therapist assessment in the home would be useful in assessing the Applicant’s capacity to use assistive equipment, such as an electric shaver. If, for example, the assessment established that using an electric shaver was safe, she would not maintain her recommendation for formal support. With toenail cutting Ms Sale understood the Applicant can access podiatry services pursuant to his GP Management Plan for toenail care. She was also of the view filing would be safer than using clippers but in terms of effectiveness she thought that was a question for a podiatrist. If the Applicant was to access podiatry services pursuant to his GP Management Plan, this would change her view on his need for formal supports with toenail cutting.
The Applicant asked Ms Sale questions about whether he might have moderate difficulty getting in and out of his shower. She explained that, with respect to assessing difficulty she relied on his self-reporting.
Having considered all the evidence before me in relation to the Applicant’s capacity to perform self-care tasks, I am satisfied the Applicant is able to transfer to and from the toilet independently and complete toileting without assistance. I accept the Applicant gets into the bath to access the shower using a modified technique, by holding on to the glass partition for stability, but does so without assistance. I note he continues to hold on to the glass partition for stability. He has not sought to use a chair or bath board in the shower, so I am satisfied he is able to stand to shower. While I accept brushing his own teeth can be messy, I am satisfied the Applicant can do this. There is no evidence before me to indicate he requires the assistance of another person to complete self-care tasks of toileting, teeth brushing and showering.
I am satisfied the Applicant uses a modified technique to dress himself because he struggles with buttons and zippers. Ms Sale’s evidence was that he sits to don pants and underwear. I accept that he puts on his own shoes but sometimes has trouble because of toe curling. There is no evidence however that he requires the assistance of another person to dress or put on his shoes.
I accept the Applicant struggles to shave and sometimes cuts himself. I note he chooses not to use an electric shaver on the basis of his experience with one, many years ago. I am of the view that it would be reasonable for him to have an occupational therapist assessment in his home to trial the use of assistive equipment, such as an electric shaver, a commonly used item.
I accept that the Applicant struggles to clip his toenails because of his impairment. However I am also satisfied there are alternatives available to him such as filing his nails and/or visiting a podiatrist under his GP Management Plan. On the evidence before me, I am not satisfied he will not be adequately supported under this plan.
With respect to meal preparation, I take into account the Applicant’s preference for chopping his own vegetables, for the reasons he has given but I am not persuaded on the evidence before me that pre-chopped food has no nutritional value, or that its cost is prohibitive. While I accept there might be aspects of food preparation that would put him at risk of injury, I am also satisfied the assistive equipment recommended by Ms Sale are commonly used items which would reduce the risk, along with adopting alternatives such as the microwave to avoid burns over the stove. I am satisfied the Applicant is able to go to the shop to buy groceries. I am satisfied he is able to access the fridge, microwave, stove, oven and reach for commonly used items in the kitchen. I accept the Applicant’s evidence that he uses jar/bottle opening aids which I consider to be commonly used items.
With respect to housework, I am satisfied the Applicant is able to clean and wipe down the bath, toilet, shower and kitchen surfaces, and that he is able to do the laundry using a washing machine and dryer and change bed linen. I accept heavier housework is performed by his wife and children. However I note the Applicant chooses to mow the lawn, which I do not consider to be light yard work, and attend to light gardening duties.
Overall I accept the Applicant adopts modified techniques to complete a number of self-care tasks. I accept there are some self-care tasks that he struggles with, such as chopping vegetables, vacuuming and lifting heavy loads. However, I must apply the approach set out in Foster by assessing the Applicant’s functional capacity with respect to the bundle of tasks and actions forming the concept of self-care. As such, the activity to be assessed is self-care as a whole, and not a specific task or action within self-care, such as chopping vegetables, vacuuming or lifting heavy loads.
In considering rule 5.8 I am satisfied the Applicant is able to perform and complete tasks and actions required for self-care. I am also of the view the Applicant is usually independent and does not usually require assistance from other people to perform self-care tasks. Therefore rules 5.8(b) and 5.8(c) are not met.
I note the Applicant’s evidence that he drives himself to his medical appointments. There is no evidence to suggest he requires assistance to participate in consultations with his treating doctors. I am satisfied he is able to independently perform the tasks associated with maintaining his health.
In considering whether the Applicant meets rule 5.8(a), and applying the test set out in Foster, I am satisfied that, in the main, the Applicant is able to care for himself effectively or completely, and to perform tasks or actions required to care for himself effectively or completely, without assistive technology, equipment (other than commonly used items) or home modifications, by undertaking the tasks more slowly using some techniques he has adopted, such as when showering and dressing, which he can use without assistance. I am not satisfied rule 5.8(a) is met.
I am satisfied the Applicant can independently perform the tasks of personal care, hygiene, grooming, eating and drinking. He is able to dress, shower, eat and go to the toilet without assistance from others. Taking into account the Court’s guidance in Foster, considered overall, while I accept there are some limitations in the Applicant’s capacity due to his tremors and shaking, and there are some discrete tasks he cannot do with respect to cooking and housework, I am not satisfied his impairments result in a substantially reduced functional capacity in relation to the self-care activities; personal care, hygiene, grooming, eating and drinking, and health. Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Ms Clark did not indicate that the Applicant has a substantially reduced functional capacity in self-management.
In his SFIC the Applicant stated he is not able to manage his money proactively, and he cannot plan for the future. He claimed that he cannot perform anything but a minimum of tasks because his cognition is severely impaired. He claimed he is unable to pay bills and frequently misses deadlines. He associates this with stress.
Ms Sale reported that, with respect to his cognitive capacity for planning, problem solving and making decisions, the Applicant said that most days he is independent with self-management activities and denied any difficulties or challenges in this domain. During periods of heightened stress and anxiety, he has trouble with activities that involve a degree of planning, organising, decision making and coordinating. He has trouble thinking clearly and making decisions. To manage in this domain, he withdraws from complex decision-making activities on those days. Ms Sale formed the view the Applicant is independent in taking responsibility for himself. She reported that he is largely independent in managing his finances but has difficulties when he is feeling exceptionally stressed or anxious.
At the hearing the Applicant acknowledged that on most days he is able to make decisions, plan and coordinate but there are times when those tasks are impossible. He acknowledged that Ms Clark did not indicate he has a substantially reduced functional capacity in self-management. He claimed however that his capacity for self-management has deteriorated since 2012, when he migrated to Australia. However he confirmed that he engaged in full-time employment after arriving in Australia, as the chief executive officer of a packaging company where he was responsible for strategic planning. He was then employed as a senior implementation leader at McKinsey & Company, a leading consulting company, which uses a problem-solving test to assess a person’s ability to solve business problems. He retracted that evidence, claiming it was not a test, but rather a series of interviews or a process. He was responsible for change management projects at McKinsey & Company. The role required him to engage in decision-making, problem solving and financial information analysis. He was then employed at another company as the chief operating officer and chief financial officer until 2018 or 2019. He claimed however that he was not able to fulfil those duties.[88]
[88] Transcript of proceedings, 30 October 2023, page 45.
For the reasons given above, without a formal cognitive assessment, I am not satisfied the Applicant has a cognitive impairment. While I accept the Applicant might have days when he finds decision making more difficult because of stress and anxiety, I am not satisfied those are permanent impairments. I am not satisfied any impact on his functional capacity in the domain of self-management is due to his physical or neurological impairment.
There are some inconsistencies in the Applicant’s evidence about his capacity to perform self-management tasks. I am persuaded by Ms Sale’s report, which indicates the Applicant is, in the main, independent in self-management tasks because there is no evidence before me to indicate that the Applicant relies on another person to manage his finances.
Considered overall, I am not satisfied the Applicant meets any of the circumstances set out in rule 5.8 with respect to the activity of self-management.
Having considered the Operational Guideline with respect to self-management, I am satisfied the Applicant is able to, in the main, organise his life, plan, make decisions, and look after himself, manage his money and manage day-to-day tasks. While he claims to have a cognitive impairment that affects his capacity for self-management, there is no evidence from a qualified professional to suggest the Applicant does not have the cognitive ability to manage his life.
Considered overall, I am not satisfied the evidence supports the Applicant’s assertion that his impairments impact his ability to self-manage. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake self-management activities.
Does the Applicant satisfy the disability requirements?
For the reasons given above, I find the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the specified activities (mobility, self-care, communication, social interaction, learning, and/or self-management) as required by paragraph 24(1)(c) of the Act. Accordingly, he does not meet the disability requirements.
As the Applicant has not met a mandatory provision of the disability requirements, it is not necessary for me to consider whether he meets paragraph 24(1)(e) of the Act.
Does the Applicant satisfy the early intervention requirements?
As the Applicant has not met the disability requirements, I must consider whether he meets the early intervention requirements.
The Operational Guideline with respect to early intervention currently states as follows:
We need to decide that getting early intervention supports means you’ll likely need less disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
·addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
·preventing your functional capacity from getting worse
·improving your functional capacity
·supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
·how your impairment might change over time
·how long you’ve had your impairment
·if there’s been a significant change to your impairment
·if your needs are likely to change soon, such as if you’re finishing school.
The Applicant has had dystonia and associated impairments for about 45 years, since he was a teenager.
Ms Clark answered “No” in response to the question on the Access Application Form, “Are Early Intervention supports likely to reduce the applicant’s future support needs?”.[89]
[89] T4, page 42.
In his SFIC, in relation to whether early intervention support will benefit the Applicant by reducing his future need for supports (paragraph 25(1)(b)), the Applicant has referred to Ms Clark’s recommendation[90] that the Applicant have ongoing physiotherapy assessment and management of balance and gait kinematic deviations, ongoing intensive functional strengthening to allow for improvements in gait and balance, occupational therapy assessment and regular and frequent podiatry input. Ms Clark also stated that the Applicant requires significant education and assistance “at this early phase of his disability”[91] to set up programs and strategies to avoid unnecessary reliance on formal supports. Given the duration of his neurological impairment, I am not satisfied the Applicant is in an early phase of disability. The Applicant also noted Ms Sale’s recommended long term assistance with home and car modifications and assistance with heavy domestic and outdoor tasks and her recommendation that the Applicant needs formal supports.[92]
[90] JB1, A2, page 229.
[91] Ibid, page 230.
[92] JB1, S2, page 229.
The Applicant referred to Dr Silberstein’s letter of support. I note Dr Silberstein’s letter of 6 July 2022[93] states that the Applicant’s dystonia is a permanent stable genetic neurologic condition and he is supportive of the NDIS application. He does not specifically address the issue of early intervention. His letter dated 28 April 2020 was written before the Applicant’s access application and does not mention it.[94] His letter dated 15 May 2023 reports that the Applicant had a substantial benefit from left foot and right knee reconstruction and his mobility was much improved.[95] He referred to the Applicant’s review application and indicated he would be happy to provide supportive information, however I have not seen evidence from Dr Silberstein which addresses the issue of early intervention.
[93] JB1, A3.
[94] JB1, A1, page 224.
[95] JB1, S2A, page 30.
In relation to the provisions in paragraph 25(1)(c) of the Act, the Applicant has noted Ms Clark reported the Applicant “has received limited input from therapy services would benefit from multi-disciplinary team approach including psychological input for counselling, with regular reassessments to monitor his functional deterioration and assist maximise his independence and reduce reliance on formal supports.”[96] She gave her recommendation about the physiotherapy support the Applicant needed. I note this letter was written before the Applicant had his knee surgery which, in Dr Silberstein’s view, improved his mobility. I also note the Applicant’s oral evidence that he has not sought psychological counselling but most recently consulted his psychiatrist Dr Meagher once in about January 2023.[97] The Applicant also submitted that prescribed orthotics will prevent deterioration of his functional capacity.
[96] JB1, A2, page 230.
[97] Transcript of proceedings, 30 October 2023, page 32.
Regarding the requirement that the support is most appropriately delivered through the NDIA and not another agency, the Applicant submitted with respect to Ms Clark’s and Ms Sale’s recommendations “it would be hard to imagine who can help coordinate all that activity much less finance some of their recommendations…I am asking for support from the NDIS as I believe there is no other organization or entity that can organize and put together the wide range of formal and informal supports I require.”[98] The Applicant referred for example to transport services offered by his local council. I am not satisfied he requires transport services given his own evidence that he drives himself to the shop and medical appointments. He referred to Safe and Supported at Home (SASH) supports but noted their packages are short term and submitted that he needs long term supports, not temporary supports.[99] He opined that GPs are ill-equipped to develop and maintain strategies across the varied allied health domains.[100] I do not agree with this view. GPs have a duty to complete steps for the GP Management Plan and I have not seen evidence to support the Applicant’s assertion that they are not equipped to do this.
[98] JB1, S2, page 26.
[99] JB1, S2, page 26.
[100] Ibid, page 27.
The Respondent’s position on the early intervention provisions is as follows.[101] The Applicant has been living with dystonia for 45 years and there has been slow progression of his condition over time. No intervention could now reasonably be described as ‘early intervention’ or ‘providing support at the earliest possible stage’. The Respondent notes Ms Clark ticked “No” in response to the question on the Access Application Form, “Are Early Intervention supports likely to reduce the applicant’s future support needs?” and did not set out any recommendations for early interventions. In light of this, Ms Clark’s report dated 25 September 2021 cannot be construed as supporting early intervention. Ms Clark’s recommendation for a multidisciplinary team was in response to questions about whether the impairment is permanent.
[101] Respondent’s Closing Submissions dated 23 November 2023, pages 21-25.
The Respondent also submitted that Ms Clark’s report dated 25 September 2021 is now out of date, was written only three months after the Applicant’s foot reconstruction surgery, and the Applicant was still recovering from the surgery and undergoing physiotherapy treatment. Also the Applicant had not had his knee surgery and physiotherapy, or his second hand surgery which he confirmed having in April 2022 in his oral evidence. The Applicant conceded at the hearing that there was substantial functional benefit from these surgeries.
With respect to Ms Clark’s report dated 11 August 2022, the Respondent has submitted that it does not refer to, or take into account, the Applicant’s total knee replacement surgery undergone in May 2022, or the physiotherapy the Applicant underwent following that surgery. Also, it sets out results of the High Level Mobility Assessment Tool, without stating that the tool was administered when the Applicant was still recovering from the total knee replacement surgery. It does not acknowledge any improvement in the Applicant’s mobility as a result of surgeries and post-operative physiotherapy. Also it does not refer to the Applicant’s hand surgeries despite stating the dystonia was most evident in hand function. The Applicant conceded that there was substantial functional benefit from those surgeries.
With respect to whether supports are most appropriately funded through the NDIS, the Respondent submitted Ms Clark’s recommendations are of a clinical nature. Physiotherapy sessions are available under a GP Management Plan. There is no expert evidence before the Tribunal regarding the Applicant’s current physiotherapy intervention requirements. Assessment by an occupational therapist is available under a GP Management Plan. The Applicant can also have 10 psychology sessions under that plan.
I have considered the submissions and agree that the recommendations made by Ms Clark in September 2021 are out of date and could not have taken into account the functional benefit for the Applicant from the knee surgery, second hand surgery and postoperative physiotherapy.
I note the Applicant’s impairments are permanent, so paragraph 25(1)(a)(i) is met. They are also longstanding. I note the evidence indicating his dystonia’s slow progression. I also note Ms Clark did not indicate in the Applicant’s access application that early intervention would be likely to reduce the Applicant’s future support needs. My view is her submissions about the Applicant’s need for ongoing supports were in relation to the issue of whether his impairments are permanent. I am not persuaded the evidence demonstrates that the provision of early intervention supports is likely to benefit the Applicant by reducing his future needs in relation to his disability. I am not satisfied paragraph 25(1)(b) is met.
My reading of the law is that the Applicant must meet paragraph 25(1)(b) to meet the early intervention requirements. However, if I am wrong about this, for the following reasons, I am not satisfied the Applicant meets the provisions set out in paragraph 25(1)(c) and subsection 25(3) of the Act.
With respect to whether early intervention is likely to benefit the Applicant by mitigating or alleviating the impact of his impairment on his functional capacity to undertake any of the six listed activities, prevent deterioration or improve function, I am of the view there is insufficient current evidence to clearly identify what those supports would be. I note Ms Clark’s recommendations are either out of date, or do not take into account his last two surgeries and postoperative physiotherapy. It might be that the Applicant would benefit from further physiotherapy, but I am not satisfied on the evidence before me that further physiotherapy would achieve any of the outcomes set out in paragraph 25(1)(c) of the Act. Nor am I satisfied there is sufficient evidence to confirm that orthotics are likely to achieve any of those outcomes.
While I am not satisfied there is sufficient current evidence about supports that are likely to achieve one or more of the outcomes set out in paragraph 25(1)(c) of the Act, I note Ms Sale recommended that the Applicant have an occupational therapy assessment in his home to formally assess, prescribe and demonstrate the safe use of specialist equipment and to teach alternate techniques to facilitate improved functional performance in activities of daily living. This indicates Ms Sale was of the view there could be supports which are likely to benefit the Applicant by achieving one or more of the outcomes set out in paragraph 25(1)(c) of the Act. On the evidence before me however, I am not persuaded this is the case. I am of the view further assessment is required to ascertain whether there are early intervention supports that will benefit the Applicant in the way the provision anticipates.
Even if I am wrong about this, subsection 25(3) states in effect that the Applicant does not meet the early intervention requirements if early intervention support is more appropriately funded or provided through other general systems of service delivery or support services offered as part of a universal service obligation. I understand from the Respondent’s submissions that an occupational therapy assessment is available under a GP Management Plan funded by Medicare. Given this arrangement, even if an occupational therapy assessment is an early intervention that meets the requirements of paragraph 25(1)(c) of the Act, I am of the view the support is not most appropriately funded or provided through the NDIS, and it is more appropriately funded through Medicare. Accordingly the Applicant does not meet the early intervention requirements because subsection 25(3) is not met.
I also note from the Respondent’s closing submissions that the provision of other allied health services, physiotherapy, psychology and podiatry, are available to the Applicant under a GP Management Plan. Therefore, even if it is the case that those services might benefit the Applicant to achieve any of the outcomes set out in paragraph 25(1)(c), the Applicant cannot meet the early intervention requirements with respect to those supports because of the requirement in subsection 25(3) of the Act.
Having considered the evidence before me I accept the Applicant has physical and neurological impairments that are permanent. However, I am not satisfied the other requirements set out in paragraph 25(1)(b) and (c) and subsection 25(3) are met.
Accordingly, I am not satisfied the Applicant meets the early intervention requirements to enable him to become a participant of the NDIS under section 25 of the Act.
CONCLUSION
I find the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision is correct.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly
....................................[SGD]....................................
Associate
Dated: 9 February 2024
Date(s) of hearing: 30 and 31 October 2023 Date final submissions received 14 December 2023 Applicant: Self-represented Counsel for the Respondent: Ms M Fisher Solicitor for the Respondent: Ms G Kurewa, National Disability Insurance Agency
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