RRMR and National Disability Insurance Agency (NDIS)
[2024] ARTA 74
•15 November 2024
RRMR and National Disability Insurance Agency (NDIS) [2024] ARTA 74 (15 November 2024)
Applicant/s: RRMR
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7853
Tribunal:General Member J Toohey
Place:Brisbane
Date:15 November 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Applicant meets the access requirements in section 21 of the National Disability Insurance Scheme Act 2013.
................[Sgnd]............................................
J Toohey
Catchwords
National Disability Insurance Scheme – Access – Becoming a participant rules – Commencement of the Administrative Review Tribunal – Getting the NDIS Back on Track –Substantially Reduced Functional Capacity – Assessing Activities and Tasks – Rheumatoid Arthritis – Chronic Pain – Fatigue of Chronic Illness – Assessing Pain – Self-Care Tasks – Weight of Evidence – Lifetime Support of NDIS – Appropriateness of Other Systems of Support – Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems – ATPOS
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Timofticiuc and National Disability Insurance Agency [2021] AATA3015
Secondary Materials
Operational Guideline ‘Applying to the NDIS’ as published on 1 February 2024
The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems as published on 27 November 2015
Queensland Community Support Scheme Practice Manual Version 2.1 as published on 24 May 2024
Statement of Reasons
SUMMARY
I have decided that the Applicant meets the access requirements as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) for the following reasons.
INTRODUCTION
The issue before the Tribunal is whether the Applicant (‘RRMR’[1] or the ‘Applicant’), meets the access criteria to be a participant of the National Disability Insurance Scheme (‘NDIS’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’).
[1] The Tribunal put in place confidentiality orders which replace the Applicant’s name with the pseudonym ‘RRMR’ and prevent the publication of information that could identify the Applicant or the witnesses in the proceeding. In these written reasons, witness names have been replaced with initials and terms that might identify the Applicant through their age or residence have been removed.
The Applicant is aged in her mid-40’s and suffers from significant pain, fatigue, and physical restrictions related to a 2011 diagnosis of rheumatoid arthritis. In June 2023, RRMR applied for access to the NDIS with supporting information provided by the Applicant’s General Practitioner, Dr RP.[2]
[2] T3
On 27 June 2023, a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘the Agency’) decided that the Applicant did not meet the criteria for access to the NDIS. On 16 August 2023, the Applicant requested an internal review of the delegate’s decision. On 11 October 2023, the Agency affirmed its original decision to refuse the Applicant access to the scheme and on 23 October 2023, the RRMR applied for a review by the Administrative Appeals Tribunal (‘AAT’) under section 103 of the NDIS Act and section 25 of the AAT Act.
The Tribunal held a hearing by video on 8 and 9 August 2024. The Applicant was represented at the hearing by Mr C Bilboe. The Agency was represented by Counsel, Ms MA Stone. As the Applicant became legally represented after pre-hearing submissions were due, and the Respondent introduced video evidence on the first day of the hearing, both parties were provided with the opportunity to make written submissions following the hearing. Final submissions were received on 1 November 2024.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (‘Back on Track Act’) commenced on 3 October 2024 and made significant amendments to the NDIS Act. As RRMR’s request for access to the NDIS was made before 3 October 2024, section 126 of the Back on Track Act provides that the NDIS Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
ISSUES
The issues before the Tribunal are whether the Applicant meets:
· the disability requirements under s24 of the NDIS Act, or
· the early intervention requirements under s25 of the NDIS Act.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK
Chapter 1, Part 2 sets out the objects and principles the NDIS Act including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[3] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[4]
[3] Section 3(1)(c).
[4] Section 3(3)(b).
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provide:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The disability requirements are contained in section 24 of the NDIS Act and provide:
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.
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules).
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[5] The relevant operational guideline is Applying to the NDIS.[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[6] 1 February 2024.
Age and residence requirements
There is no dispute the Applicant satisfies the age and residence requirements. I am satisfied that these requirements are met.
Disability requirements
I must consider whether the Applicant meets the disability requirements in section 24 of the NDIS Act.
Impairments, likely to be permanent, affecting social and economic participation
There is no dispute that the Applicant has a disability attributable to impairments, which are permanent, and which affect her capacity for social and economic participation. Based on the health professional reports, I am satisfied that the Applicant has a disability that is attributable to Rheumatoid Arthritis, Multi-level Facet Joint Disease L4/5 and L5/S1 with spinal canal stenosis, Chronic Cervical Pain, and Fatigue of Chronic Illness.[7] In particular, permanency is confirmed by Dr KD,[8] Occupational Physician, at page 20 of his report in which he says:
Fatigue and pain are the main causes of [RRMR’s] reduced capacity for work and this will continue. The rheumatoid arthritis joint pain will flare up from time to time requiring time off work and an increase in medical treatment. [RRMR’s] musculoskeletal conditions will not reverse.
… [RRMR] could be assumed to be at maximum medical improvement currently …
[7] NDIS Act, section 24(1)(a).
[8] Names replace by initials throughout to reduce the risk of Applicant identification,
I am also satisfied, based on the reports, that the impairments are permanent and affect the Applicant’s capacity for social and economic participation.[9] Dr KD, at page 21 of his report, recommends working a maximum of 5 hours per day, 5 days per week with breaks and other adjustments including home based work. I note that the Applicant is likely also impaired by an adjustment disorder,[10] but does not seek access in relation to impairments attributable to this condition.
[9] NDIS Act, sections 24(1)(b) and 24(1)(d).
[10] This diagnosis by Dr PV, Consultant Psychiatrist, is confirmed on page 12 of Dr KD report dated 21 August 2023. However, no report by Dr PV has been provided to the Tribunal.
Substantially reduced functional capacity
As Justice Mortimer (as the Chief Justice then was) explained in Mulligan:[11]
50. The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1).
…
55. Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
56. That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
[11] Mulligan v National Disability Insurance Agency [2015] FCA 544.
Rule 5.8 of the Becoming a Participant Rules states:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The phrase ‘effectively and completely’ used in Rule 5.8 was considered by the Full Court of the Federal Court in Foster[12] in which the court observed:
82. The Macquarie Dictionary (8th ed, Macquarie, 2020) at p 493 defines “effectively” to mean “serving to effect the purpose; producing the intended or expected result”. “Completely” is defined in the Macquarie Dictionary at p 323 to mean “wholly, entirely, fully” or “perfectly”. On a proper grammatical construction of r 5.8(a), the adverbial phrase qualifies the verb “to participate”. The use of the disjunctive “or” means that only one standard need be reached, not both.
83. In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone. That would be an absurd construction. It also casts doubt on what work is to be done, if any, by cl 8.3.1 of the Guidelines, which provides that “[u]ndertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity”.
[12] National Disability Insurance Agency v Foster [2023] FCAFC 11.
I would however express a note of caution in relation to the Court’s reference to clause 8.3.1 of the guidelines above. At paragraph 44, the Court sets out that it is applying “The most recent Guidelines … updated on 1 July 2022”. This guideline has been replaced since and the most recent version was published on 1 February 2024. The current guideline no longer includes the above caveat in relation to undertaking a task more slowly or differently. Page 8 of the current guideline states the following in relation to assessing functional capacity:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above 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.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
I also note the last sentence in the quote above is also different form the previous version of the guideline, which instead said:
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person’s ability to function in the periods between acute episodes.
It is important also to consider the way in which the earlier wording of this guideline has been applied in decisions of the Tribunal. See for example the reasons of DP Humphries in Madelaine[13] which applied the guidelines as published at the time of that decision in 2020. This decision is still regularly referred to as an authority for the proposition that undertaking a task more slowly or differently does not amount to a substantially reduced functional capacity. In my view, decisions applying the wording from previous guidelines need to be read in context and decision-makers need to take care to apply the legislation, rules and guidelines that are presently in place.
[13] Madelaine and National Disability Insurance Agency [2020] AATA 4025, paragraphs 74 to 76.
Expert Evidence
The Tribunal has the benefit of several reports including from:
(a)Ms LH, Senior Clinical Psychologist, on 2 June 2023;
(b)Dr RP, General Practitioner, 2 June 2023;
(c)Dr IH, Rheumatologist, on 5 and 14 July 2023, and 17 April 2024;
(d)Ms EB, Occupational Therapist, on 18 August 2023;
(e)Dr KD, Consultant Occupational Physician, on 21 August 2023;
(f)Ms CT, Occupational Therapist, on 20 March 2024; and
(g)Ms JM, Senior Occupational Therapist and Behaviour Practitioner, on 1 May 2024.
Dr RP, the Applicant’s General Practitioner for more than 10 years, described the impacts on the Applicant’s functional capacity as including: significant daily pain and impaired movement limiting activities of daily living; chronic and ongoing fatigue; impaired sleep; dizziness and loss of balance. In his opinion, the Applicant’s impairments substantially reduce her functional capacity and the Applicant required disability-specific supports in relation to undertaking household chores; social and recreational activities; dressing; grooming and hair-washing. Dr RP was not required to provided oral evidence.
Ms LH, the Applicant’s treating Psychologist since 2011, described the impacts on the Applicant’s functional capacity in largely the same terms as Dr RP, adding that the Applicant experienced chronic anxiety and depression impacted by their physical conditions. Ms LH considered that RRMR would benefit from NDIS supports with household cleaning; yard maintenance; meals; equipment for showering and dressing; and allied health. Ms LH was not required to provided oral evidence.
Dr KD, an Occupational Physician assessing the Applicant’s fitness for work duties, described an overall ‘high severity impact’ of the Applicant’s musculoskeletal conditions. Dr KD described the Applicant as: mostly independent in showering and dressing; able to load a washing machine; able to water the garden; able to load and unload a dishwasher while holding onto the kitchen bench. Dr KD noted that the Applicant’s spouse did most of the cooking, shopping, heavier housework and gardening, and that the Applicant’s children assisted with vacuuming, mopping and laundry tasks. Dr KD considered that the RRMR was fit for part-time work up to 25 hours provided the Applicant can: change posture every 30 minutes; work from home three days per week; use a sit/stand workstation; and take a break every two hours. Dr KD was not required to provided oral evidence.
Dr IH, the Applicant’s treating Rheumatologist in 2011, and ongoing from 2023, described the RRMR’s rheumatoid arthritis in July 2023 as particularly affecting her ability to function in the home. Dr IH described difficulties with cleaning, meal preparation, and shopping. At that point-in-time, Dr IH said that the Applicant’s symptoms were moderate, and the prognosis was guarded. By April 2024, Dr IH considered that the Applicant required significant levels of support with self-care, mobility and motor skills. In her opinion, Dr IH considered that the Applicant had a substantially reduced functional capacity. Dr IH provided oral evidence at the hearing in which she explained how the pain, swelling and immobility of the small joints in RRMR’s fingers impacted many tasks which require the use of the Applicant’s hands. Dr IH also explained how similar issues in the Applicant’s toe joints impacted stability and balance.
Ms EB, an Occupational Therapist engaged to provide a report for the Applicant, described significant impairments relating the Applicant’s psychology, cognition, endurance, and pain. Ms EB recommended NDIS supports for: meal preparation; household cleaning; yard maintenance; community access; dressing aids; personal hygiene assistive technology; a pressure mattress and electric bed base; physiotherapy and exercise physiology; task adaptation though occupational therapy; and assistance with transport.
Ms EB provided oral evidence at the hearing. Ms EB described the Applicant’s difficulties with sleeping, dressing, showering, toileting, meal preparation, eating, laundry and cleaning. When asked about the assistive technology that would assist with personal hygiene, Ms EB recommended a bidet. Ms EB clarified her use of the phrase ‘significantly impaired’ throughout her report was the highest level of impairment that Ms EB was referring to. Ms EB correlated the phrase with the term ‘substantially’ use in the legislation or ‘extreme’. In Ms EB’s opinion the activity that was most impacted for the Applicant was the activity of self-care. Ms EB described the level of impairment for the Applicant as substantial in that self-care was “very much impaired to a point where it was impacting all areas of life”. Ms EB was concerned that the level of support provided by the Applicant’s family was not sustainable.
Ms CT, an Occupational Therapist engaged by the Respondent to conduct an independent assessment, considered that the Applicant required a very high level of physical assistance with the activities of self-care. Appendix B of Ms CT’s report indicates that a rating of ‘very high’ is the highest level of assistance and means that a person is “Unable to perform task at all. Requires assistance for entire task”. Similarly, Appendix B says that the descriptor ‘physical’ for the type of assistance required is the highest on the scale used and means that a person “Requires physical assistance of another person to perform task.” Ms CT provided oral evidence at the hearing. Ms CT considered each task that made up the activity of self-care in section 6 of her report. In summary, at page 31, Ms CT stated:
[RRMR]’s pain will restrict her capacity to perform these movements and her overall function will be further compounded by fatigue. These impairments affect her ability to participate in most of her self-care tasks, where she use modified techniques to complete tasks. Pain also affects her ability to participate in domestic tasks, which are supported by informal supports and minimal formal supports.
…
[RRMR] requires assistance with all aspects of meal preparation, laundry, cleaning and garden/house maintenance. She would benefit from low cost assistive technology such as a Thermomix to reduce chopping, small aids and devices such as large handled lightweight utensils and crockery, non slip surfaces, modified chopping boards, a raised toilet seat with armrests, easy grip devices, an adjustable height shower chair for getting dressed, various pillows for support when sleeping and an adjustable standing table.[14]
[14] Quote modified by the Tribunal to remove gender references.
Ms CT’s explanations about the cumulative impact of work activities on the Applicant’s pain and fatigue levels, and consequential reduction in the Applicant’s ability to participate effectively in activities of self-care reinforced the similar views put forward by the other occupational therapists.
Ms JM, a Senior Occupational Therapist who provided a report for the Applicant, agreed with the findings of Ms EB and considered that the Applicant’s functionality was at a much lower level than what is normal for a person of similar age. Ms JM provided oral evidence at the hearing. Ms JM considered that the activities that were most impacted for the Applicant were social interaction, mobility, self-care and self-management. Ms JM was concerned that the level of support presently provided by the Applicant’s spouse and children might not be sustainable.
When asked about the functional assessment scale Ms JM had applied in her report, Ms JM referred to the international standard Care and Needs Scale (CANS). Ms JM assessed the Applicant as being Level 4 on this scale. According to the Manual for the Care and Needs Scale (CANS)[15] an assessment of Level 4 means that a person:
Can be left alone for part of the day and overnight: needs support each day (up to 11 hours) for assistance, supervision direction and/or cueing for occupational activities, interpersonal relationships and/or living skills.
[15] Tate, R.L. (2017). Manual for the Care and Needs Scale (CANS). Unpublished manuscript. John Walsh Centre for Rehabilitation Research, University of Sydney. Updated version 2. Accessed at evidence
In RRMR’s written submission to the Tribunal, prior to engaging legal representation, the Applicant described the impacts on her functional capacity as follows:[16]
I have severely poor sleep due to significant daily pain – foot / ankle / knee / hip / spinal / shoulder and neck pain and inflammation, which renders me constantly tired. My pain fluctuates, but is it always there, I have just become used to living in pain, however, some days I can’t get out of bed, I can’t walk or dress myself at all. Other days I can’t cut my food or use my hands. I am [in my 40s] and I am screwed!
Getting out of bed takes significant effort (and sometimes just doesn’t happen), I have to try and stretch in bed before getting out daily, but often my foot / spinal pain makes it too painful to walk. I wake up nightly with complete numbness in my arms / legs due to inflammation.
I am exhausted undertaking basic self-care tasks eg: getting dressed, showering, brushing teeth and making breakfast.
I always wear slip on shoes as I can’t bend to put lace up shoes on. Try to put shoes on brings tears to my eyes due to the bending required. Stairs are near impossible as my knees give way due to pain. Opening doors makes my wrists feel like they are sprained.
All aspects of house cleaning and property maintenance have been impossible for me for several years now (no laundry, mowing, room cleaning, vacuuming, bending, mopping, reaching or any activity requiring me to undertake exertive physical movements can be done without severe pain and repercussions taking me out for day to weeks at a time.
[16] Pages 8 and 9 of the Applicant’s reply dated 28 June 2024 to the Respondent’s Statement of Facts, Issues and Contentions.
At the hearing, the Applicant presented as an honest and intelligent person. With her qualifications as an exercise physiologist, and part-time employment in assessing impairments for individuals seeking government assistance, the Applicant has a good level of insight in relation to her conditions. The Applicant expressed her gratitude for the flexibility of her employer in allowing RRMR to work 25 hours per week, with flexible shifts, completed mostly from home, and providing modifications for her workstations at her home and workplace. The Applicant described how she needed to keep working these hours for financial reasons, but that this level of work left the Applicant with very little energy to complete non-work activities.
The Applicant describes how, on bad days, she cannot get of bed, weight-bear, or complete any tasks. The bad days may occur as a ‘flare’ up of symptoms every couple of months and can last for more than several days. The Applicant stated that she does not have any good days.
On an typical day, the Applicant said that she could not: cut food with a knife and fork; open jars or bottle (her spouse leaves the cap on the milk bottle loose); use a peeler; chop vegetables; lift anything over a kilo (and frequently dops lighter items such as a cup of water); make school lunches; eat a meal during the day (unless it has been prepared by a family member); remove tablets from a blister pack; pick up an item dropped on the floor; wash her feet, back or hair; dry themself fully; cut her toenails; shave her legs; consistently wipe after using the toilet; wear clothes with zips, clips, buttons, or a belt; put on closed in shoes (other than a pair of velcro orthotic shoes); put a t-shirt over her head, or pants over her feet (when working from home, RRMR may remain in her pyjamas); apply make-up; change earrings; put on a bra; change position in bed (RRMR has to lay her hands flat under a pillow or she cannot straighten them in the morning); make her bed; wash or iron clothes; mop or vacuum floors; wipe benchtops; put dishes away in a cupboard; or put petrol in her car.
On an typical day, the Applicant said that she could: prepare a basic sandwich (but generally doesn’t because of the effort and risk of dropping items); use a stick vacuum to spot clean after dropping something; pour a cup of water from a wide-handled kettle; transfer in and out of bed (with difficultly, in the morning she needs to move her joints in bed for around 30 minutes before being able to get out of bed); and participate in work activities with the modifications that have been put in place.
Weight of evidence
Both parties made submissions regarding the weight that should be given to the evidence provided by the witnesses.
With regards to RRMR’s evidence, the Agency submitted that the Applicant was lead, was argumentative, and exaggerated her symptoms. In reply, the Applicant’s representative submitted that these concerns were not raised or put to the Applicant during evidence. I have reviewed the transcript and agree these issues were not squarely put to the Applicant and the Applicant did not have an opportunity to respond to these concerns. The one objection the Agency made in relation to the Applicant being lead resulted in the Applicant’s representative withdrawing the question.
In my assessment, the Applicant’s presentation was consistent with a person suffering from pain, fatigue, and stress. During the hearing the Applicant needed frequent breaks due to pain and distress in detailing the highly personal impacts of her impairments on RRMR and her family. I accept the Applicant’s explanation that she did not fully or consistently disclose some details, such as in relation to personal hygiene, to each assessor due to embarrassment. This has resulted in some inconsistencies in the expert reports. I consider the Applicant provided honest and credible evidence.
The Agency submitted that the evidence of Ms EB was of limited utility as her report lacked description, did not set out the factual basis of her findings, and was not a full functional capacity assessment with direct observation of the Applicant performing the relevant tasks. The Applicant’s representative submitted that Ms EB did observe the Applicant perform tasks in the home and that the repor should be given appropriate weight. During oral evidence, Ms EB acknowledged that her report was not a full functional capacity assessment and that this was due to the Applicant’s financial limitations. However, the report was prepared with the benefit of observing the Applicant in her home, an interview, the use of assessment tools, and with a review of other medical reports. Ms EB confirmed her report was her clinical view and not a legal opinion. Ms EB provided thoughtful and clear responses to questions from the parties and the Tribunal. Ms EB has six-years of experience as an occupational therapist, which is less experience than the other occupational therapists. With this lower level of experience and the limitations of her report I have given slightly less weight to Ms EB’s evidence.
The Agency submitted Dr IH’s evidence was assistive to the Tribunal to the extent that it comments on the Applicant’s medical diagnoses and the likely degenerative nature of the Applicant’s. The Applicant’s representative did not contest that Dr IH’s evidence was less directly relevant to the Applicant’s functional capacity. During oral evidence, Dr IH said she would defer to the occupational therapists for an assessment of the Applicant’s functional capacity. I accept Dr IH’s explanation that her medical opinion was put forward in an assertive manner in her report and that she was not intending to offer a legal opinion. I consider that Dr IH’s opinion was independent, properly considered and provided in a thoughtful manner. Some of Dr IH’s views were expressed in more general terms regarding the common impacts of RA, rather than being specific to the Applicant. Given Dr IH’s deference to the occupational therapy assessments, Dr Hutton’s opinion is of slightly less weight when considering whether the Applicant has a substantially reduced functional capacity with the meaning of the NDIS Act.
The Agency summited that Ms JM’s evidence was of no assistance to the Tribunal and should be disregarded in its entirety. This submission was based on: that the assessment was conducted by telehealth and did not directly observe the Applicant conducting activities of daily living; the report was a ‘document review’ of existing medical evidence; Ms JM sought to advocate for the Applicant and her report went beyond the scope of her expertise; Ms JM was lead in her evidence; and her evidence with regard to CANS should be disregarded as Ms JM gave no evidence to support how she made that assessment or the factual basis of the assessment. In reply, the Applicant’s representative accepted that Ms JM did not conduct a functional assessment but submitted that the report should be given appropriate weight by the Tribunal. The Applicant’s representative submitted that the Agency’s concerns with Ms JM advocating for the Applicant were not put to Ms JM and no objection was raised to the way in which Ms JM gave evidence. It is clear from Ms JM’s report that she was asked to comment on a statement of issues prepared by the Respondent. In my view, this resulted in Ms JM providing opinions on the whether the Applicant’s met the legislative requirements in the NDIS Act. I do not consider that this meant that Ms JM was providing a legal opinion or advocating for the Applicant.
Ms JM has more than 35 years’ experience as an occupational therapist and 5 years’ experience as a behavioural practitioner. Ms JM’s assessment was conducted by way of a 40-minute telehealth interview and file review. Ms JM provided clear and definitive answers to the questions put by the parties and the Tribunal. Despite Ms JM’s extensive experience, the limitations in her assessment and report mean that I have given slightly less weight to her evidence. I do not agree that these limitations mean that Ms JM’s evidence should be disregarded.
During the hearing, Counsel for the Agency asked the Applicant to comment on several short videos and photos taken by Ms CT during her assessment. These videos were not included in Ms CT’s report, but still photo excerpts were. The
Applicant’s representative submitted that adding the video evidence was inconsistent with the Tribunal’s Guidelines for Persons Giving Expert and Opinion Evidence which require all relevant material to be included in expert’s report.
While the Tribunal agreed that these videos and photos could be included as evidence and put to the Applicant, I did not find that this assisted the Tribunal. I prefer the opinion of Ms CT as expressed in her report as this opinion was formulated based on her whole interactions with the Applicant and Ms CT’s review of other records. I accept the Applicant’s explanation in relation to the videos and photos shown that she cannot complete the tasks on a regular enough basis to be considered effective. This self-reporting is consistent with the opinions of the allied health professionals. Technical issues with playing the videos also disrupted the witness schedule and limited the Applicant’s ability to fully take part in the hearing process.
The Agency submitted that Ms CT’s evidence should be preferred over that of Ms EB and Ms JM as it was the most current, independent and thorough. Aside from the concerns related to the video-footage, the Applicant’s representative did not raise concerns regarding the weight that should be given to Ms CT’s evidence. During oral evidence, Ms CT clarified some inconsistencies in her report. Ms CT was somewhat less confident in her opinions than the other occupational therapists, and her clarification of her conclusions in relation to mobility did change more than once in response to questions from the parties and the Tribunal. However, Ms CT’s willingness to reconsider her views assisted the Tribunal in understanding the reasoning that informed her conclusions. Ms CT has over 30 years’ experience as an occupational therapist and completed a full functional capacity assessment with the Applicant in her home environment. Of the expert reports before the Tribunal, I considered Ms CT’s report to be the most comprehensive and relevant to considering the Applicant’s functional capacity.
For completeness, I also note some inconsistency between Dr KD’s assessment of the Applicant’s capacity for completing self-care activities and household chores compared with the views of the occupational therapists. As Dr KD’s report was focused on work duties, and he did not conduct an assessment in the Applicant’s home, I prefer the opinions of the occupational therapists in relation to the Applicant’s functional capacity for non-work activities.
CONSIDERATION
Assessing activities and tasks
The Applying to the NDIS Guideline describes the relevant functional activities as:
·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.
·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.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·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.
·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.
·Self-management (if older than 6) – 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.
The Applicant submits that RRMR has a substantially reduced functional capacity in respect of both the activities of mobility and self-care. The Agency accepts the Applicant has some reduction in her functional capacity in these activities but that this reduction does not rise to the threshold of substantial. As outlined by the Agency, the Full Court in Foster emphasised the that the inability to undertake a single task within an activity does not mean that there is a substantially reduced functional capacity in relation to the relevant activity.
This does mean that the tasks that make up an activity need to be clearly understood. Unfortunately, from my perspective, this is not an entirely straight-forward exercise. Firstly, there is clearly scope for overlap between the activities set out in section 24 of the NDIS Act. For example, a person with substantially reduced functional capacity in the activity to communication will also likely have similar reduced capacity for social interaction. Secondly, the parties’ submissions and the experts’ reports do not consistently consider which tasks fall within which activity. For example, in the submission of both parties, cleaning is dealt with in relation to the activity of mobility. However, in the report of Ms CT, cleaning is considered as part of the activity of self-care. Ms EB describes cleaning as being an Activity of Daily Living (ADL) which is not a descriptor used in the NDIS. Ms JM does not specifically discuss cleaning but refers to ‘domestic tasks’ separately from ‘self-care’ tasks.
Contrary to the submissions of the parties, I am not convinced that mobility is the appropriate activity category in which to consider cleaning tasks in respect of RRMR. RRMRs reduced capacity to undertake cleaning tasks is less directly connected to how the Applicant moves around the home or uses her arms and legs. For RRMR, the barriers to cleaning relate to her fingers, lifting, bending, gripping, pain, and fatigue. Without others completing cleaning and laundry tasks, the Applicant’s living environment would quickly become unhygienic, and her health could be impacted. In this way, I agree with the categorisation used by Ms CT in which the tasks of cleaning and laundry are be considered as part of the activity of self-care. Without assistance, the Applicant would not be able to complete these tasks in a way which would amount to RRMR being able to care for herself.
I will adopt most of Ms CT’s description of the tasks within the activity of self-care which included: showering; dressing; personal hygiene; bowel/bladder; eating; meal preparation; cleaning; laundry; and grocery shopping. I would add ‘medication’ to the activity of self-care as it relates to the Applicant’s capacity to care for her health. Ms CT dealt with medication in the activity of self-management. In my view, the inability to effectively complete these tasks does reduce a person’s functional capacity to self-care. However, I do not consider that Ms CT’s inclusion of ‘lawn/garden maintenance’ in the activity of self-care is correct, as these tasks are more aligned with the activity of mobility.
Assessing the impacts of pain
At paragraph 30 of the Agency’s Statement of Fact, Issues and Contentions, the Agency submitted that:
The Applicant may experience pain doing certain things, but this does not mean the Applicant has deficits in functional capacity to do those things. The management of the Applicant’s pain is a separate consideration.
The Agency did not provide that basis for this assertion, but at paragraph 31 of the Agency’s closing submissions, the Agency further said:
The Tribunal should also be mindful not to conflate the Applicant’s pain with her identified impairments. Pain is not an impairment in itself, but it might be such that it limits particular bodily functions and then constitutes an impairment.
The Agency cited the decision in Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641, [47]-[48] for this proposition. I do not consider that Katterns is a relevant authority for how to consider pain in the NDIS. Katterns was dealing with a different scheme and was directed towards a timing issue in respect of legislative amendments that occurred in 2007.[17] This is a different question as to how pain should be considered as part of an assessment of functional capacity for the purposes of the NDIS. In my view, the pain that RRMR experiences when completing tasks is clearly relevant to an assessment of her functional capacity.
[17] The issue being whether pain experienced during Army Reserve service in the 1980s and 1990s demonstrated onset of a condition for which clinical signs were only evident after 2012. Whether the onset of the condition was before or after the 2007 amendments was important as it would lead to a different conclusion in relation to entitlements under the Safety, Rehabilitation and Compensation Act 1988.
Whether a person does not or cannot do a task
At paragraph 33 of the Agency’s closing written submissions, the Agency also cites Timofticiuc[18] for the contention that that the Tribunal must distinguish between what the person does not do, as opposed to what they cannot do. I note that the relevant paragraph in this decision relates to the activity of social interaction in which the Tribunal said:
Looking at the evidence as a whole, the way in which the Applicant has isolated himself is unfortunate, and no doubt is causing him real difficulties. However, his residual capacity for social interaction, albeit with modifications in relation to place and activity, remains. I must consider not what the applicant does not do, but what he cannot do. The statutory threshold is met only if his impairments result in substantial functional impairment. The Tribunal finds that there is an insufficient evidential nexus between the Applicant’s lack of social interaction and any functional incapacity that would impact his social interaction. Put another way, I am satisfied that the Applicant does not interact socially beyond what is required for his work and other basic needs, but the evidence does not demonstrate that he cannot do so because of a substantial functional impairment arising from his physical and/or psycho-social impairments.
[18] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, at 96.
In relation to RRMR, I consider that the Applicant does not have a residual capacity in relation to the activity of self-care and there is a relevant nexus connecting the evidence and RRMR’s functional capacity. As indicated earlier, I also consider it important to recognise that decisions such as Madelaine and Timofticiuc applied an earlier operational guideline which included the caveat that undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
Functional capacity to undertake the activity of self-care
Despite some variations in the expert evidence, there was a consensus that the Applicant’s impairments result in reduced functional capacity in relation to the RRMR undertaking the activity of self-care. The extent of this reduced capacity is described in various ways in the different expert reports. I have also placed differing weight on the evidence of some of the experts as compared with others. Overall, the reports are largely consistent with the Applicant’s lived experience. Taken together, the whole of the evidence presents to me a clear picture of the Applicant’s impairments.
The Applicant is unable to effectively bend forward, twist her neck or trunk, lift more than one kilogram, grip items with one hand, reach above her head, or sit or stand for long periods. These impairments mean that the Applicant usually requires assistance from other people to perform most of the tasks that make up the activity of self-care. The Applicant can use modified techniques but might benefit from assistive technology in relation to some of the self-care tasks of showering, toileting, sleeping, dressing and eating. The Applicant has reduced functional capacity in relation to these self-care tasks.
The Applicant usually requires physical assistance from other people with meal preparation, laundry, cleaning, medication, putting away groceries, washing her hair and feet, shaving her legs, and cutting her toenails. The Applicant has a substantially reduced functional capacity in respect of these self-care tasks. Applying Rule 5.8(b) of the Becoming a Participant Rules, I consider that RRMR is deemed to have a substantially reduced functional capacity in the activity of self-care as the Applicant usually requires assistance to perform most of the tasks or actions required to undertake or participate in the activity. Based on the expert opinions, the Applicant’s lived experience, and my own assessment of how this applies to the legislative criteria, I find that the Applicant has impairments that result in a substantially reduced functional capacity to undertake the activity of self-care.
As Section 24(1)(c) the NDIS Act only requires a substantially reduced functional capacity to undertake one or more activities, it is not necessary to consider the other activities.
Lifetime support of NDIS
Section 24(1)(e) of the NDIS Act requires that a person is likely to require support under the Scheme for the person’s lifetime. In Foster, the court held that:
The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.[19]
[19] At paragraph 93.
I note that, on the first reading of the National Disability Insurance Scheme Bill 2012, the proposed wording of section 24(1)(e) was:
the person’s support needs in relation to his or her impairment or impairments are likely to continue for the person’s lifetime.
During passage of the NDIS Bill, amendments were moved on behalf of the government which included changing section 24(1)(e) to the wording as enacted. The Supplementary Explanatory Memorandum said that:
Amendment 16 replaces paragraph 24(1)(e) with a new paragraph which focuses on whether the person with disability is likely to require lifetime support under the NDIS, rather than whether the person’s support needs are likely to continue for their lifetime. This is one of the conditions that need to be met for a person to satisfy the disability requirements.
At paragraph 39 of the Agency’s Statement of Facts, Issues and Contentions, the Agency submitted:
… the Respondent considers that, on the available evidence, the Applicant's impairments are health conditions for which supports and treatment remains the responsibility of the health system.
During the hearing, the Agency requested that the Applicant provide a list of non-NDIS services that RRMR has sought or explored supports from. The list provided by the Applicant included the following:
· Carers Wellness
· Disability Gateway
· Lite n Easy
· Meals on Wheels
· Anglicare
· Local Council
· Continence Aids Payment Scheme
· My Aged Care
· Home assist
· Arthritis Australia
· Local Federal MP
· Queensland Community Support Scheme
· DES Providers
· My community directory
· Services Australia
· Private health fund
· Workcover
In providing this list, the Applicant also stated that:
I recognize that the NDIS is not responsible for the diagnosis and clinical treatment of my condition – I already have a diagnosis and treatment team and very actively utilise my GP / Rheumatologist / Mental Health Treatment Plan with my GP / Chronic Disease Management Plan with my GP / Allied health professionals / Pharmacological interventions for as many services as I can afford as I get no funding / support. However, none of the recommendations made by the OT's / GP or Specialists can be provided by the health system at all. The supports I require are clearly outlined in all three Occupational Therapy reports and can only be provided via NDIS access for a person of my age and who does not live off income support payments. [emphasis in original]
In their written closing submissions, the Agency also submitted that: the Applicant being on a waiting list for the Queensland Community Support Scheme (QCSS) indicates that RRMR is eligible for this program; the Applicant would be eligible for the Continence Aids Payment Scheme (CAPS) because RRMR has spinal stenosis which is a neurological condition; and there may be other community services that the Applicant can access such as low-cost meal delivery services through Suncare.[20]
[20] Link provided in the Agency’s submissions: see >
In the Applicant’s closing written submissions, the Applicant’s representative submitted that the other systems and services do not provide the support that the Applicant requires in relation to her disability. In their closing submission in reply, the Applicant’s representative further submitted that:
The applicant submits that she is not eligible for the any other Service System. This evidence was not challenged by the respondent at hearing and should be accepted.
Further, the applicant submits that the Tribunal would err if it concluded that one possible community support service may be available, which the applicant does not concede that it is, which goes to a very specific type of service, in respect of one domain, in isolation of consideration of the large statutory question of whether she is likely to require NDIS supports under the Scheme for her lifetime.
Both parties agree that is appropriate for the Tribunal to have regard to The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems (ATPOS).[21] Principle 2 of ATPOS states that:
The NDIS will fund personalised supports related to people’s disability support needs, unless those supports are part of another service system’s universal service obligation (for example, meeting the health, education, housing, or safety needs of all Australians) or covered by reasonable adjustment (as required under the Commonwealth Disability Discrimination Act or similar legislation in jurisdictions).
[21] (published 27 November 2015)
In relation to the responsibilities of the Health and NDIS systems ATPOS further sets out that:
3. Health systems are responsible for funding time limited, recovery-oriented services and therapies (rehabilitation) aimed primarily at restoring the person’s health and improving the person’s functioning after a recent medical or surgical treatment intervention. This includes where treatment and rehabilitation is required episodically.
4. The NDIS will be responsible for supports required due to the impact of a person’s impairment/s on their functional capacity and their ability to undertake activities of daily living. This includes “maintenance” supports delivered or supervised by clinically trained or qualified health professionals (where the person has reached a point of stability in regard to functional capacity, prior to hospital discharge (or equivalent for other healthcare settings) and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
Dr IH has acknowledged that the health system remains responsible for the diagnosis and clinical treatment of the RRMR’s Rheumatoid Arthritis.[22] While RRMR has not articulated with any great precision the supports the Applicant is seeking from the NDIS, I do not consider that this is entirely necessary in assessing whether the Applicant is likely to require the support of the NDIS for her lifetime. The Occupational Therapists have identified areas in which the Applicant requires supports from others due to RRMR’s reduced functional capacity, particularly in relation to self-care. The Occupational Therapists have also made various recommendations for assistive technology, allied health support, and task or home modifications.
[22] Page 3 of Dr IH’s report date 17 April 2024.
At a minimum, it is clear to me that the Applicant is likely to require support worker assistance with cleaning, laundry, and meal preparation for the Applicant’s lifetime. These supports are required due to the impact of the Applicant’s impairments on her functional capacity and ability to undertake the activity of self-care. Applying the ATPOS principles, such supports are the responsibility of the NDIS. The extent of this assistance, including what is reasonable for the Applicant’s family to provide, is best considered more carefully during the planning process. As was set out by Justice Mortimer (as the Chief Justice then was) in Mulligan at paragraph 34:
It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.
The Tribunal is not particularly well placed to assess the eligibility of prospective participants for non-NDIS programs. It is the appropriateness of the NDIS, as compared with other systems, to provide disability related supports which is the focus of section 24(1)(e). I do not consider that eligibility for supports under another system (such as CAPS) definitively answers whether RRMR is ‘likely’ to require support under the NDIS for her lifetime. This is distinguishable from the situation considered by the court in Foster in which the only support that the Mr Foster sought was subsidised (at least in part) by CAPS.
While RRMR may be on a waiting list for the QCSS, the relevant practice manual indicates that:[23]
It is expected that the majority of QCSS service users will only require time limited or episodic support to achieve the goals and objectives outlined in their support plan and will be able to build their capacity over relatively short periods of time to live independently in their home and community without ongoing QCSS supports, or with reduced support.
[23]Queensland Community Support Scheme Practice Manual Version 2.1: 24 May 2024 [Item 2.3.9].
Based on the evidence before the Tribunal, I do not consider that RRMR only requires time-limited and episodic support, or that RRMR will build her capacity to live without supports. The practice manual also sets out that persons requesting access to the QCSS who have a permanent disability are required to test and determine their eligibility with the NDIS prior to accessing the QCSS as the QCSS is not available to persons who have been determined as eligible for the NDIS.[24] This means that the availability of QCSS to a prospective NDIS participant is a somewhat circular question. I would consider that RRMR is still testing their eligibility for the NDIS through the Tribunal process.
[24] Section 2.1.4
I have looked at the Suncare website as referred to in the Agency’s closing submissions. I consider that Suncare is provider of fee-for-service programs under the Australian Government’s My Aged Care program. I do not see the relevance of this organisation or their services to RRMR’s application. I also consider that is it not necessary for prospective participants to demonstrate that they have explored all options for non-NDIS assistance.
I agree with both parties that the Applicant’s employer is responsible for providing workplace adjustments.
In relation to section 24(1)(e), I am satisfied that the Applicant, based on the current information, is likely to require the support of NDIS for their lifetime.
Early intervention requirements
As I have concluded that the Applicant meets the disability requirements in section 24, I have not considered further whether the Applicant also meets the early intervention requirements in section 25 of the NDIS Act.
CONCLUSION
I am satisfied that the Applicant meets the Age, Residency and Disability requirements as set out in section 22, 23 and 24 of the NDIS Act. I am therefore satisfied that the Applicant meets the access criteria in section 21 and should therefore become a participant of the NDIS.
The decision of the Agency under review is set aside and in substitution the Tribunal decides that the Applicant meets the access requirements in section 21 of the NDIS Act.
Dates of hearing: 8 and 9 August 2024 Date final submissions received: 1 November 2024 Solicitors for the Applicant: C Bilboe (Intrepidus Law) Solicitors for the Respondent: T Hawcridge (Maddocks Lawyers)
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