Saeed and National Disability Insurance Agency - [2024] AATA 3030

Saeed and National Disability Insurance Agency [2024] AATA 3030 (27 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/10332
Re:Mr Mian Saeed
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION
Tribunal:Member N Purcell
Date:27 August 2024
Place:Sydney

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
............[sgd]...................................
Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – pre-hearing process – pain – expert evidence – photo evidence – allegation of bias against expert – deeming provisions – substantially reduced functional capacity – 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
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and National Disability Insurance Agency [2015] AATA 974
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Beezley v Repatriation Commission (2015) FCAFC 165
Madelaine and National Disability Insurance Agency [2020] AATA 4025 (13 October 2020)
National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
Nika v National Disability Insurance Agency [2021] AATA 2127.
Goodwin and National Disability Insurance Agency [2021] AATA 1438
Newell and National Disability Insurance Agency [2023] AATA 4140
Galea and National Disability Insurance Agency [2022] AATA 2263
Beaumont and National Disability Insurance Agency [2024] AATA 891
SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
REASONS FOR DECISION
Member N Purcell
27 August 2024
INTRODUCTION

The issue before the Tribunal is whether the Applicant meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
The Applicant is a 57-year-old male who lives with chronic pain affecting his cervical and thoracic spine and right scapula, which is secondary to a diagnosis of central sensitisation. He has also been diagnosed with an adjustment disorder, anxiety, and depressed mood. These conditions arose in the context of a work-place injury in 2013.
As a result of these conditions, the Applicant experiences pain affecting the right side of his neck, right scapula and the upper back region, a restricted range of movement in his right shoulder, limitations with flexion of his neck and upper back and diminished activity tolerance due to increased pain.[1]
[1] Tab 22 of JHB, p513.
The Applicant lives with his wife and 4 of his 6 children in a privately rented single storey property in Middle Park. His daughter aged 19, his sons aged 15 and 16 and his daughter aged 6 live at home. Two adult sons no longer live at home, with one at university and the other employed. The property has 4 bedrooms and is set on an average size block where the family has lived for many years. His wife previously studied but is currently in receipt of a carer allowance and looks after the couple’s youngest daughter.
The Applicant migrated to Australia from Pakistan in 1987. He has worked in a range of roles in Australia including as a chef in a family restaurant, a real estate sales consultant and project manager and driver. He was working as a casual truck driver delivering crates of bread when he suffered an injury in 2013.
The Applicant subsequently settled a workplace injury claim following an appeal in February 2015 to the Queensland Industrial Relations Commission against a decision of the Workers’ Compensation Regulator. The Commission found that the Applicant had sustained an injury and was accordingly entitled to compensation.[2] By all accounts, the Applicant found both the impact of the injury and the associated legal process, stressful and frustrating. He sought psychological support from clinical psychologist Mr Malcolm MacKenzie during this period.[3] He was granted the disability support pension in 2023[4] following an earlier attempt in 2021.[5]
[2] See T3, Saeed v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 28 (18 February 2015).
[3] See T5, Letter, Dr Malcom MacKenzie (Psychologist) dated 21 August 2015; T6, Letter, Dr Malcom MacKenzie (Psychologist) dated 18 September 2015 and T7, Letter, Dr Malcom MacKenzie (Psychologist) dated 28 September 2015.
[4] Tab 19 of JHB, Documents produced under summons by Dr Malcolm MacKenzie, at p407.
[5] Tab 18 of JHB, Documents produced under summons by Middle Park Medical Centre, at p319.
On the 22 August 2022, the Applicant applied for access to the NDIS. On 6 September 2022, a delegate on behalf of the National Disability Insurance Agency decided that although the Applicant satisfied the age and residency access criteria, he did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act.
On 3 October 2022, the Applicant sought internal review of the original decision pursuant to section 100 of the NDIS Act. On 1 December 2022, the Respondent affirmed the original decision. The Applicant then sought review of the internal review decision by this Tribunal pursuant to section 103 of the NDIS Act on 16 December 2022.
The Tribunal held a hearing by video on 4 and 5 July 2024. The Applicant was unrepresented in the proceedings. The Agency was represented by Mr Thomas Liu of counsel.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB) which was accepted into evidence[6] including a set of documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’). The Applicant also filed various documents including reports from his general practitioner (GP) Dr Jennifer Young, pain specialist, Dr Joseph Kluver and psychologist, Mr Malcolm MacKenzie, written submissions and a statement of lived experience dated 9 September 2023. The JHB also included medical and psychological material obtained by way of summons and an independent functional capacity assessment report with photos dated 1 August 2023 (‘original report’) by occupational therapist, Mr Glen Dwyer. The same report with the photos removed dated 12 February 2024 (‘amended report’) and a supplementary report dated 12 February 2024 (‘supplementary report’) were also included.
[6] Admitted and marked JHB. The ‘T-documents’ were not reproduced within the JHB, and therefore references to the T-documents will use the original ‘T’ identifier.
The Respondent’s Statement of Facts, Issues and Contentions dated 23 January 2024[7] along with a letter from Dr Young dated 25 June 2024[8] were also admitted into evidence on the second day of the hearing. The Tribunal was assisted by the opening and closing submissions of both parties, which were made orally at the hearing.
[7] Admitted and marked ‘E1’.
[8] Admitted and marked ‘E2’.
PRE-HEARING PROCESS
The Tribunal noted prior to the first telephone directions hearing (TDH) that a comparatively large proportion of the Applicant’s documentary evidence focused on issues of permanency (related to his physical impairments), conditions or diagnoses, and details concerning his workplace injury which occurred over 10 years ago. He had also provided information associated with his previous appeal to the Queensland Industrial Relations Commission and complaints to the Office of Health Ombudsman and Office of the Australian Information Commissioner.[9] There was rather limited information about the Applicant’s day-to-day life and functional capacity with respect to tasks of daily living.
[9] Tab 7, JHB.
First directions hearing by telephone – 17 May 2024
The Tribunal informed the parties at the first TDH on 17 May 2024 that it planned to list the matter at the earliest opportunity as the Respondent’s statement of facts, issues and contentions had been filed, the draft hearing bundles had been compiled and the Applicant’s matter had been before the Tribunal for approximately 2 years. The Applicant welcomed the Tribunal’s approach, and the hearing was ultimately listed for the 4 and 5 July 2024. The Respondent was required to brief alternative counsel for those hearing dates.
The Tribunal also explained to the Applicant that his functional capacity would likely be a key focus of the hearing. He was invited to file any final additional evidence that he thought could support his case. The Applicant indicated he would like to get a further report from his GP, Dr Young who had already provided several reports. Accordingly, a direction was made that the Applicant file any further report by the 31 May 2024 along with a brief witness statement from any lay witness intended to be called, such as his wife or one of his older children. The Tribunal explained that a witness statement need not be more than a couple of pages long and could comprise dot points.
The Tribunal further explained that expert witnesses can give evidence via phone or video, should be available for at least 1 hour and that the Tribunal does not cover the costs associated with expert witnesses giving evidence; the Applicant must liaise directly with Dr Young about her attendance and negotiate any costs if she gives oral evidence.[10]
[10] The Applicant’s correspondence to Dr Young dated 5 June 2024 indicates that he did understand he was responsible for covering any costs associated with Dr Young giving evidence, stating: “Please don’t charge this cost to Medicare, please send us the tax invoice to [email address] and please note and book your appointment diary on 5^th July at 11:15. The Tribunal may require your oral medical opinion over the phone conference for 20 minutes”. See Tab 15 of JHB, p112.
During the TDH, the Applicant raised several concerns about Mr Dwyer’s assessment and original report, which is discussed below in the section ‘Allegation of bias and/or misleading the Tribunal’. The Tribunal informed the Applicant that any inaccuracies, errors or concerns about the conclusions reached in the report could be put to Mr Dwyer at the hearing.
On 31 May 2024 at 3:30pm, the Applicant requested a 10-day extension to file evidence on the basis that he was unable to secure an appointment with Dr Young until the 14 June 2024. No further explanation was provided as to why witness statements had not been prepared in compliance with the direction other than “my medical condition caused increased pain during the winter months, which severely affects my sleep and cognitive abilities. This situation hinders my capacity to read, write, and ensure the accuracy of my documents, which I would require help from children and their availability”. The Tribunal notes that the Applicant was not required to prepare any documents; he was simply required to file brief statements prepared by any lay witness who intended to give oral evidence at the hearing. The Respondent was neutral in their response to the Applicant’s request but sought a commensurate extension to comply with Direction 3 regarding the filing of the joint paginated hearing bundle.
Noting that the joint hearing bundle was due to be filed with the Tribunal on 14 June 2024, on 3 June 2024 the Tribunal varied its 17 May 2024 directions as follows:
1.    On of before 7 June 2024, the Applicant must give to the Tribunal and the Respondent:
a.    A brief witness statement from any lay witness intended to be called by the Applicant at the hearing;
b.    Copies of all reports, records, any other document which the Applicant intends to rely on at the hearing (not already contained in the 4 draft hearing bundles and excluding an updated report from Dr Young).
2.    On or before 17 June 2024, the Applicant must file any further material or an updated report from Dr Young, noting that he has an appointment with her on 14 June 2024 and is preparing a document for her review.
3.    On or before 19 June 2024, the Respondent is to provide the Tribunal and the Applicant with a joint paginated hearing bundle (electronic copy)
4.    On or before 25 June 2024, the Respondent is to provide the Applicant with a hard copy of the joint paginated hearing bundle.
5.    On or before the 27 June 2024, the parties are to provide the Tribunal with a witness schedule.
The parties were reminded in the accompanying email that the matter had been with the Tribunal since 2022 and it was very important that they comply with the new dates.
On 9 June 2024, the Applicant sent a further email attaching a ‘Request for direction’ document to the Tribunal and the Respondent. The Applicant said he “intends to complete [his] partner’s statement” and requested additional time to 17 June 2024 to file “family witness statement” and “the tribunal judgment case which is like mine” (other relevant Tribunal decisions).
On 12 June 2024, the Tribunal made the following orders:
1. The email from the Applicant dated 9 June 2024 is taken to be the Applicant's second application for an extension of time to comply with the directions dated 17 May 2024 and updated on 3 June 2024 (which provided an extension of time).
2. The Tribunal does not grant the second request for an extension of time, as the Applicant has not provided a reasonable explanation for his non-compliance.
3. The Tribunal will consider what, if any, further evidence it will admit at the commencement of the hearing.
4. The parties may address the Tribunal on relevant law or other Tribunal decisions in their opening and closing submissions at the hearing.
5. A further directions hearing by video will be held on Monday 17 June 2024 to explain the hearing process to the Applicant.
On 13 June 2024, the Applicant wrote to the Tribunal stating:
In anticipation of the forthcoming tribunal proceedings, I wish to update to inform you that Dr. Young has scheduled a telephone conversation on 5 July, 2024, at 11:15am. Given her demanding schedule and commitments to other patients, this call is expected to last approximately 15 to 20 minutes, during which she will confirm her reports and discuss potential strategies to improve my daily task performance given my disability condition. [The Respondent] has confirmed that they do not intend to cross-examine any of the applicant’s treating doctors”.
Second directions hearing by video – 17 June 2024
The Tribunal arranged for the second directions hearing to be conducted by video on 17 June 2024 so that the Applicant would have an opportunity to use the ‘Teams application’ (used to conduct hearings) and engage with the Tribunal face-to-face prior to the final hearing. Further, it appeared from relatively lengthy email correspondence from the Applicant that he had misconstrued the Tribunal’s explanation that it does not cover expert witness costs nor liaise with witnesses regarding their attendance. The Applicant had not filed a witness statement on behalf of any lay witness.
At the second directions hearing the Tribunal explained it had listened to a recording of the first directions hearing and was unable to identify anything to indicate the Applicant did not understand the explanations provided. The Tribunal invited him to explain any misunderstanding, and queried whether there was a need for an interpreter.
Following the ensuing discussion, the Tribunal was unable to determine whether there was a genuine misunderstanding or simply a disregard for the directions given, however the general impression was that a possible language barrier was not necessarily the cause of any misunderstanding. Out of an abundance of caution, the Tribunal decided that an Urdu interpreter should be booked for the hearing. The Applicant indicated his preference was to speak in English and to use the interpreter only if he required any assistance to express himself or understand a technical term. He did not request the assistance of the interpreter at any time during the hearing.
Despite the extension of time to file an additional report from Dr Young, the Applicant informed the Tribunal at the second directions hearing that he would not be filing a further report. The Respondent reserved their right to question Dr Young should she be called by the Applicant to give evidence. The Tribunal also explained it would have questions for Dr Young should she be called to give oral evidence.
The Respondent’s solicitor was requested to assist the Tribunal by contacting Dr Young directly to explain the usual hearing process and to seek her availability beyond a fifteen-minute time slot. The Respondent’s solicitor contacted the Middle Park Medical Centre on 25 June 2024 and spoke to Dr Young’s colleague. A detailed email was sent the same day explaining the situation and informing Dr Young that the Tribunal had requested she make herself available for at least one hour if giving oral evidence.
The Tribunal also discussed the Applicant’s intention to call his 16-year-old son to give oral evidence. The Tribunal is of the view that it was not appropriate to hear oral evidence from a child, particularly in circumstances where his wife or one of his three adult children could give evidence.
The Applicant did not explain why he had not filed a brief witness statement despite indicating that his wife had been preparing one. The Tribunal asked the Applicant to file any statement by 5pm that day.
The Tribunal explained the hearing process to the Applicant and suggested he make notes of any questions he would like to ask a witness before the hearing, including Mr Dwyer.
On 25 June 2024, the Applicant wrote to the Tribunal and Respondent stating that his wife would provide a witness statement on 5 July 2024.
Hearing by video
On 4 July 2024, the first day of the hearing, the Tribunal asked the Applicant why he had not filed a witness statement from his wife prior to the hearing. He indicated that the weather in Brisbane has been cold, causing him strong pain and stiffness. He was unable to provide any explanation as to why his wife was unable to prepare a short statement despite the Applicant being on notice about the need to do so from 17 May 2024. The Applicant said, “I think that she was thinking if ever she’s going to appear, which is on Friday, then maybe doesn’t need to provide any written statement”. The Tribunal noted that the issue was not about what his wife understood but rather what he understood, as he had attended the two directions hearings and it was his application. The Applicant confirmed that he understood what had been requested by the Tribunal.
Counsel for the Respondent, Mr Liu, advised the ‘joint witness schedule’ was an inaccurate description of the document provided to the Tribunal the day prior to the hearing. He indicated the Applicant’s wife had effectively been inserted into the schedule on the second day of the hearing without consultation. Mr Liu noted that Mr Dwyer, the expert witness, was scheduled to give evidence that afternoon and that it was undesirable for him not to have the opportunity to comment on any lay evidence, should the Applicant’s wife be permitted to give evidence.
Notwithstanding the difficulties that can arise without advance notice of lay witness evidence, including issues of procedural fairness, the Tribunal reserved its decision on the issue of whether to hear oral evidence from the Applicant’s wife.
Dr Young sent a letter to the Respondent’s lawyers on 26 June 2024 confirming she had “blocked off one patient appointment slot of fifteen minutes at 11:15am”.[11] She indicated that it would be difficult to expand this time due to her patient load and said, “I have little to add to the written reports supplied by myself and other treating health professionals… concerning this matter”.[12]
[11] E2.
[12] E2.

At the conclusion of the first day, a further question arose as to whether Dr Young would be able to join the hearing at 11:15am the following day if she was running behind with her patient appointments. Counsel for the Respondent indicated he did not have any questions for the Applicant’s wife or Dr Young. The Applicant also confirmed he did not have any questions for his wife or Dr Young and wished to rely on the medical evidence already filed. The Tribunal indicated it would think overnight about whether it had any questions for either person.
The following morning, the Tribunal informed the parties that any questions it might have asked of the Applicant’s wife or GP could simply be put to the Applicant ahead of closing submissions. The Tribunal asked the Applicant several additional questions and then the parties made their closing oral submissions.
LEGISLATIVE FRAMEWORK
The access criteria
To become a participant of 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 that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(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, the Tribunal must consider whether he meets the early intervention requirements set out in section 25 of the Act which relevantly states:
(1). A person meets the early intervention requirementsif:
(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 a developmental delay; 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.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework. Excerpts of the Access Rules are included in my discussion of section 24(1)(c) and section 25 below.
The NDIS Operational Guidelines are also relevant to 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.[13] The relevant Operational Guideline at time of decision is Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[14]
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[14] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
The Tribunal also notes that in Mulligan[15], Mortimer J (as she then was), held that the legislation pertaining to the access criteria 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 multifaceted”.[16] The Full Court of the Federal Court of Australia in Foster[17]also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[18]
[15] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[16] Mulligan at [55].
[17] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[18] Foster at [44].
For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[19]
EVIDENCE
[19] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Dr Jennifer Young (general practitioner)
Dr Young provided a ‘supporting evidence form’ as part of the Applicant’s access request application for the NDIS on 22 August 2022. She described his primary impairment as “persistent scapular and spinal pain secondary to central sensitisation” which has been subject to “extensive treatment with physiotherapy, pain clinic management and pharmacotherapy”.[20] She also noted that the Applicant has adjustment disorder with anxiety and depression and has had “extensive psychological treatment and counselling, pharmacotherapy, regular GP reviews – ongoing”.[21]
[20] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022, at p128.
[21] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022, at p128.
Dr Young said the Applicant “requires some assistance with social interactions and deal with outside responsibilities due to mental health symptoms and general fatigue”. Further, “some minor reduction in attention, focus and concentration – affected by fatigue, chronic pain (variable)”.[22]
[22] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022, at p129.
She concluded he did not require assistance with communication or self-management.
Dr Young wrote, the Applicant “needs assistance with all mobility in community – driving very limited by ongoing medical conditions, needs assistance with public transport. Needs some assistance/ supervision with mobilising at home when symptoms are severe”.[23] There was no other evidence before the Tribunal that the Applicant requires assistance with moving around the home or that he uses public transport. The Applicant confirmed in his oral evidence that he can drive between 5 to 20 minutes to attend appointments, go shopping or visit friends, albeit with pain. Sometimes family members also drive him to these locations.
[23] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022, at p129.
In relation to self-care, Dr Young opined, “needs some minor assistance with showering and dressing”.[24] Dr Young did not elaborate or provide any further details about the ‘minor assistance’ required.
[24] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022, at p132.
In her letter of 24 November 2022, Dr Young said:
[The Applicant] is affected by the pain on a daily basis, with a consistent pattern. The pain is mild when at rest in the early day, however even moderate exertion usually starts a deep aching pain which then forces him to stop the activity and rest. Despite this, the pain then usually continues for the rest of the day and into the night. Analgesia, heat and massage only partially and temporarily improve the pain.[25]
[25] T1D, Letter, Dr Jennifer Young (General Practitioner) dated 24 November 2022, at p27.
She concluded the following with respect to the Applicant’s functional capacity:
Sitting – less than 30 minutes
Standing – less than 30 minutes e.g. making simple snack in kitchen
Walking – 15-20 minutes e.g. short walk in a shop but unable to carry groceries
Lifting – 2-5kg e.g one bag of groceries but not heavy
Driving – less than 30 minutes e.g. short car ride but will have significant pain
Pushing/Pulling – now unable
Reaching above shoulders – limited on right side
Climbing stairs – increases back pain
Typing/computer use – needs to change posture about every 15 minutes
All of these activities still cause significant pain after the activity, with muscle spasm, for usually the rest of the day.
Any attempt to work through the pain, or perform more vigorous physical activity, resulting in correspondingly more severe and prolonged pain afterwards. This is well described by Dr Kluver as a boom and bust cycle of pain.[26]
[26] T1D, Letter, Dr Jennifer Young (General Practitioner) dated 24 November 2022, at p27.
Dr Young did not provide any information about how she conducted her assessment or formed her conclusions. The Tribunal notes that 30 minutes duration was used as a benchmark for several tasks which suggests that the Applicant’s tolerance or capacity was estimated to be closer to 30 minutes than, for example, 5 or 15 minutes.
On the 5 July 2023, Dr Young provided her response to targeted questions provided by the Applicant as part of these proceedings.[27] The questions correlate with the types of targeted questions usually provided by the Respondent.
As [the Applicant] is limited to short bursts of low intensity activities, this does not allow him to take part in any extended activities, including but not limited to – walking for more than short periods, any sustained or repetitive house duties, any repetitive lifting of moderate weights, driving for more than short periods. He needs frequent rests laying down through the day. His sleep is significantly impaired by rest pain [sic] if he has over exerted during the day.[28]
[27] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023, at p34.
[28] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023, at p36.
In relation to his functional capacity, Dr Young opined:
I understand that the patient requires some help with aspects of self-care, grooming, dressing and health needs from his [wife] and members of his family and that he is not able to fulfil his role with child care, house keeping, gardening or shopping.
His social isolation, fatigue and depressed mood, and inability to drive large distances has restricted his social interaction. His communication and learning is [sic] affected by his cognitive impairment and reduced energy and focus. His independent mobility is severely restricted by his limited walking and driving capacity.
[The Applicant] reports that in the morning sometimes he is more energetic and focussed [sic] if he has been able to sleep. However, engaging in more than light physical activity (for example walking more than 5-10 minutes, trying to do some housework) leads to pain, sometimes delayed later in the day, and then the constant and severe pain prevents him from engaging in further physical and mental activity. This then persists into the night and disrupts his rest and sleep.[29]
[29] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023, at p37.
As will be discussed below, there was no evidence from the Applicant that he requires help with grooming or dressing. There was no evidence that he does any housework, and it was unclear to the Tribunal if he has ever performed regular household chores, even prior to his injury.
Dr Young concluded that assistance with household and maintenance tasks, transport (to attend appointments and other activities) and “support for dealing with government and treating agencies would minimise the impact of his cognitive impairment”.[30] The Tribunal has no evidence of a formal cognitive assessment being undertaken.
[30] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023, at p37.
A patient health summary, obtained by way of summons from the Middle Park Medical Centre, shows that until March 2023, the Applicant was prescribed Palexia 100mg (one tablet twice a day), Panadeine Forte 500mg (one tablet three times a day PRN). and Norgesic (1-2 tablets three times a day PRN). Between March 2022 and March 2023, the Applicant was prescribed Palexia on 15 occasions by Dr Young or a medical colleague. Each script, except that on 20 April 2022, prescribed a quantity of 56 tablets, totalling 812 tablets for the period. This equates to approximately 67.6 tablets per month, or just over two tablets per day. As will be discussed below, this evidence is significant in terms of the amount of Palexia medication the Applicant claimed to take each day at the hearing.
Dr Joseph Kluver (pain specialist)
Dr Joseph Kluver is a specialist pain medicine physician and Director of Pain Rehabilitation Centre at Princess Alexandra Hospital. He first started treating the Applicant in May 2019 however the Applicant saw other practitioners in the service from October 2018. Dr Kluver confirmed the Applicant “suffers right shoulder scapular thoracic pain since 2013 in the context of heavy lifting working as a delivery driver. He has been extensively investigated with medical imaging as well as multiple specialities [sic] while under work cover”.[31]
[31] T1A, Letter, Dr Joseph Kluver (Specialist Pain Management Physician dated 9 September 2021, at p6.
Dr Kluver was not called by either party to give oral evidence.
In his letter to the Respondent dated 9 November 2022, Dr Kluver indicated he last reviewed the Applicant on 21 April 2022, who was discharged following that appointment.[32] The Applicant had 10 reviews with Dr Kluver in the period from December 2019 until April 2022. Dr Kluver explained the various treatments that had been used and why the musculoskeletal pain was considered permanent:
[The Applicant] suffers from primary musculoskeletal pain. As you are aware, he has seen a number of clinicians other than me in regard to management of his pain unfortunately without a great deal of success. My last appointment with [the Applicant], it was agreed that there isn’t any specific therapy available to him that will likely to meaningfully improve his pain and level of functioning. However, he developed good insight in regard to some of the drivers of his pain and a reasonable understanding of the neurophysiology of primary pain syndromes. Certainly sufficient to give him reassurance that there was not any sinister pathology driving his pain.
…
He has been trialled several [sic] different pharmacological agents, none of which had any meaningful success for his pain. He has also had physical therapies, pain education and engagement with a pain specialised psychologist within our service. These have led to a degree of pain acceptance, however, has not meaningfully improved his degree of pain, impairment or resultant disability. There is no cure for [the Applicant’s] pain.[33]
[32] Tab 3 of JHB, Response to targeted questions provided by Dr Joseph Kluver, dated 9 November 2022, at p5.
[33] Tab 3 of JHB, Response to targeted questions provided by Dr Joseph Kluver dated 9 November 2022, at p5.
Dr Kluver also expressed a view on the Applicant’s functional capacity at the time:
[W]hen I reviewed [the Applicant] earlier this year, he was able to participate in the activities of daily living including personal hygiene. His pain interfered with his shopping, driving long distances, carrying heavy objects. His pain interfered with his sleep, causing a degree of cognitive clouding which then contributed to some reduction in executive functioning. He is able to walk short distances however need [sic] to rest often. Even then, his pain would interfere. He did not, at that time, require any assistive aids, equipment, or home modifications.[34]
[34] Tab 3 of JHB, Response to targeted questions provided by Dr Joseph Kluver dated 9 November 2022, at p6.
Mr Malcolm MacKenzie (clinical psychologist)
Mr Malcolm MacKenzie is the Applicant’s treating clinical psychologist. He was not called by either party to give oral evidence.
Mr MacKenzie noted on 18 September 2015 in a letter to Work Cover that “the most appropriate diagnosis would be 309.28 Adjustment Disorder with mixed anxiety and depressed mood”.[35] He described the treatment approach as follows, noting he had met with the Applicant in-person on 8 separate occasions and spoken with him by telephone on several occasions:
[A] combination of CBT, supportive counselling and Solutions-focused Therapy. CBT has focussed on psycho-education, cognitive restructuring and behavioural activation, and has been implemented to address his symptoms of anxiety and depression; supportive counselling has been provided to afford [the Applicant] an opportunity to be heard and engage in some problem solving; and strategies from Solutions-focused Therapy have been utilised to focus on goalsetting to provide a forward looking focus, as [the Applicant] can be inclined to ruminate and focus on the past.[36]
[35] T6, Letter, Dr Malcom MacKenzie (Psychologist) dated 18 September 2015, at p79.
[36] T6, Letter, Dr Malcom MacKenzie (Psychologist) dated 18 September 2015, at p79.
He concluded that “[the Applicant] has shown some improvement in his mood, with his symptoms of depression reducing in intensity; however, his symptoms of anxiety remain within the severe range”.[37] Ten days later, on the 28 September 2015, Mr MacKenzie wrote to Dr Henderson (the Applicant’s GP at the time) stating “[the Applicant] remains very agitated, experiencing severe levels of stress, anxiety and depressed mood.
[37] T6, Letter, Dr Malcom MacKenzie (Psychologist) dated 18 September 2015, at p79.
Mr MacKenzie, reported on 15 April 2023:
[The Applicant] has actively engaged in the therapeutic process; one that has been largely Cognitive Behaviour Therapy based, with interventions focussing [sic] on the importance of both cognitive and behavioural change. We have also integrated aspects of Acceptance and Commitment Therapy and Solutions Focussed [sic] Brief Therapy.
From a psychological perspective his state is stable and unlikely to significantly improve as he reports that little more can be done to address his physical injuries/ disabilities and chronic pain.[38]
[38] Tab 6 of JHB, Report prepared by Malcolm MacKenzie (Psychologist) dated 15 April 2023, at p15.

Upon reviewing Mr MacKenzie’s clinical notes, which documented 25 counselling sessions (including 2 “pro-bono” sessions) between 2015 and 2023, the Tribunal found two references to Solutions Focused therapy; the first on 16 September 2015 and the second on 8 July 2019. On 18 September 2015, it was agreed that the Applicant would see Mr MacKenzie “on an as needs basis”. He did not re-attend until almost a year later on 24 August 2016. A single reference was made on 1 July 2019 in relation to “adopting an ACT approach in session, to complement earlier therapeutic interventions”.[39]
[39] T22, Progress Notes, Dr Malcolm Mackenzie (Psychologist) dated 13 November 2020, at p113.
The records suggest the Applicant did not engage with Mr MacKenzie between October 2020 and January 2023. The Applicant indicated in his oral evidence that he has seen Mr MacKenzie once in 2024.
On 28 May 2024, the Applicant filed an additional psychiatric report from Dr Hugh Daniel dated 17 March 2016 which had been prepared for the purposes of the workplace injury litigation. Dr Daniel wrote:
I note especially the reports of Dr MacKenzie. Dr MacKenzie repeatedly explains that [the Applicant] is preoccupied by his interactions with the workers’ compensation system. Further Dr MacKenzie opines that these interactions are coloured by issues within [the Applicant] himself. These issues are not formally described by Dr MacKenzie although he does note that he with [the Applicant] ‘looked at the role played by his core beliefs, life experiences and personality on his patterns of thought’.[40]
[40] Tab 13(a) of JHB, Supplementary report of Dr Hugh Daniel, psychiatrist dated 17 March 2016, at p80-1.
Dr Daniel observed the recent estrangement from the Applicant’s family of origin “in unusual circumstances”[41] and was struck by “his fixation on relatively minor inaccuracies”.[42] He surmised, “[I]t is noteworthy that [the Applicant] is also expressing hostility toward a range of other individuals and organisations. All of these factors strongly suggest a cognitive bias in [the Applicant] to interpret the motivations and behaviours of others in a malevolent manner”.[43]
[41] Tab 13(a) of JHB, Supplementary report of Dr Hugh Daniel, psychiatrist dated 17 March 2016, at p81.
[42] Tab 13(a) of JHB, Supplementary report of Dr Hugh Daniel, psychiatrist dated 17 March 2016, at p83.
[43] Tab 13(a) of JHB, Supplementary report of Dr Hugh Daniel, psychiatrist dated 17 March 2016, at p81.
Dr Daniel concluded that that the major contributing factor to the development of the Applicant’s psychological injury in the context of his Work Cover claim was “his interaction with the workers’ compensation system, lawyers and independent medical examination system”.[44]
I consider that his early stressors were related to his shoulder injury. However I note that as he went on to have shoulder surgery and improve, his mental health deteriorated. He appears to be most deteriorated in 2015 at exactly the same time that his shoulder is recovering. I would suggest that there was some combination of the factors affecting his mental health including the initial pain and shoulder injury as well as the interaction with Work Cover, but that as time passed it was the interaction with WorkCover that became the most prominent and overriding factor.[45]
[44] Tab 13(a) of JHB, Supplementary report of Dr Hugh Daniel, psychiatrist dated 17 March 2016, at p83.
[45] Tab 13(a) of JHB, Supplementary report of Dr Hugh Daniel, psychiatrist dated 17 March 2016, at p83.
The Tribunal is unable to determine the impact, if any, of the current proceedings on the Applicant or whether they have been discussed with Mr MacKenzie. Nonetheless it observed the Applicant seemed somewhat preoccupied with relatively minor inaccuracies with Mr Dwyer’s report, as discussed below.
In his oral evidence, the Applicant indicated he believed he had given Dr Daniel’s report to both Mr MacKenzie and Dr Young. He was unable to recall whether Mr MacKenzie had ever discussed any of Dr Daniel’s conclusions or whether any alternative treatment or therapy had been considered in response to the report.
As indicated earlier in this decision, the Tribunal is left with the impression from Mr MacKenzie’s letter dated 15 April 2023 that he attributes the Applicant’s mental health issues to the impact of his physical impairments, namely chronic pain, whereas Dr Daniel suggests a more complex picture not primarily connected to pain. Dr Daniel’s first report was not filed with the Tribunal.
Applicant
Documentary evidence
Prior to his application to the NDIS, the Applicant was assessed by an occupational therapist who produced a report titled ‘Job Capacity Assessment Report’ dated 9 April 2021. The report noted the Applicant could drive his children to school 10 to 15 minutes without pain, however pain increases the further he drives, such as the Gold Coast which is approximately 1 hour away. The Applicant reported to the assessor that he cooks a few times per week and was able to sit for 1-2 hours before he needs to adjust his posture because of pain. The report concluded ‘there is no functional impact on activities requiring physical exertion or stamina’.[46]
[46] T23, Job Capacity Assessment Report, Services Australia at pp 116 and 118.
In his letter to the Tribunal dated 27 March 2023,[47] the Applicant describes waking up every morning and going to bed each night with spinal pain and neck stiffness. He indicated the strong pain affects his sleep and requires him to rest for hours in bed. He noted his son sometimes gives him a back massage with oil, providing some relief and helping him sleep.[48]
[47] Tab 5 of JHB, Letter from the Applicant to the Tribunal and HWLE confirming conditions and treating practitioners dated 27 March 2023, at p12.
[48] Tab 5 of JHB, Letter from the Applicant to the Tribunal and HWLE confirming conditions and treating practitioners dated 27 March 2023, at p12.
In the same letter, the Applicant claimed to take one tablet of Palexia SR 100mg and one tablet of Panadeine Forte every 3 to 4 hours, along with other medications.[49] At the hearing, he confirmed that during the daytime he takes Palexia, Panadeine Forte and Norgesic (a type of muscle relaxant) to help manage his pain. In relation to Palexia, he said, “I take three to four or maybe 5 tablets on every day depending on my pain level”. The Tribunal asked what his current prescription allowed for, and he indicated “every four hours”. There was no other evidence before the Tribunal to indicate a change in the regular prescription of Palexia which appears to have been in place since 2019 as “one tablet twice a day”.[50] In these circumstances, the Tribunal is not satisfied the Applicant’s evidence regarding his Palexia dose is reliable.
[49] Tab 5 of JHB, Letter from the Applicant to the Tribunal and HWLE confirming conditions and treating practitioners dated 27 March 2023, at p12.
[50] Tab 18 of JHB, Documents produced under summons by Middle Park Medical Centre, at p278.
In March 2023, prior to his assessment with Mr Dwyer, the Applicant said he loses balance when walking up hills, stairs or getting in or out of the car and claims to have fallen a “few times into bathroom” and “on street”.[51] In his oral evidence, Mr Dwyer indicated the Applicant did not mention any falls or express any concerns about the risk of falls during the independent functional capacity assessment.
[51] Tab 5 of JHB, Letter from the Applicant to the Tribunal and HWLE confirming conditions and treating practitioners dated 27 March 2023, at p12.
The Applicant also wrote a four-page statement of lived experience on 9 September 2023. In this statement he indicated going to bed and waking up with spinal pain and neck stiffness. He noted that if he drives his car to get groceries, helps his partner with any household duties or makes himself a cup of tea or light breakfast that it causes him pain.[52] He described obtaining some relief from pain when massaged by his son.[53]
[52] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p45.
[53] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p46.
In relation to driving a car, the Applicant said:
I have been driving a car for last 35 years and I feel independent when I drive car, I should mention here in the course of driving a car my spinal pain does aggravated then I had to stop the car on side of the road or at nearest Car park. Where I had to take few pain killers and take few hours rest in the car for until gets lower pain before I drives again. my doctors strictly advised me ‘do not driver a car after taking painkiller’ please note that’s depends on the circumstances, I have to take rick [sic] because no option or help are available for me at this time.[54]
[54] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p46.
In September 2023, the Applicant said, “[t]his year I did fail [sic] down two times into the bathroom and once fail [sic] of while I was getting out of the car”.[55] He also described the following in relation to mobility:
After, taking long rest then I can be able to move around the house as early of day if ever I got good sleep at night and I took medication on time, any attempt to work through or perform vigorous physical activity contribute to my mobility deeply affected …extremely difficult to walk or stand. This is time when I requires help or support, I event [sic] cannot be able to perform any simple task.[56]
[55] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p47.
[56] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p47.
In relation to issues of self-care, the Applicant said:
[W]ith regard to self-care, when lower pain then I can manage most of task myself and once, spinal strong stiffness aggravated and then, I cannot be able to balance myself where I do require someone for help or support.[57]
[57] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p47.
As outlined above, the Applicant provided limited details about what his average day looks like. The Tribunal was unable to discern from the Applicant’s own material, the tasks of daily living that he claimed he could or couldn’t do beyond “drives car to local shops for pick up groceries”, “try helping partner for any household duties” and “I can make tea and lite [sic] breakfast”. He described an inability sit or stand, requiring hours of bed rest.[58]
[58] Tab 9 of JHB, Applicant’s Statement of Lived Experience dated 9 September 2023, at p45.
The Applicant’s written evidence described above was prepared approximately five months before (March 2023) and one month after (September 2023) Mr Dwyer’s functional assessment and report (1 August 2023). The Applicant’s written accounts and Mr Dwyer’s report paint two very different pictures of the Applicant’s functional capacity to perform tasks of daily living.
Oral evidence
At the hearing, Counsel for the respondent indicated he did not have any questions for the Applicant. The Tribunal proceeded to ask a range of questions of the Applicant to elicit further understanding of his day-to-day experience, routine, and functional capacity. The Applicant gave evidence from his bed where he appeared to sit or lay without significant shifting of his position for the duration of the hearing. The Tribunal did not observe any obvious indications of physical pain.
The Applicant described poor sleep and indicated he usually wakes up between 9 or 10am. He can “stand to go to the bathroom because after taking a lot of rest my pain level get is good. I mean I do not get that that heavy pain at all pain level is mild.” He then goes to the bathroom and his wife makes him breakfast. If he needs to change his clothes or bend to put on shoes “those sort of activities lead me into pain, lead me to activate heavy kind of pain, which is happens after a few hours. Then every four hours I have to take medicines to manage myself”. He described withdrawing from “most activities and I lay down on my bed and do most of the activities on my laptop the way I’m just sitting right now”.
The Applicant indicated he showers in the morning sometimes, but he may avoid it if the weather is cold. He then said the following:
But when I go to the bathroom, I have reported many times that I have fell off because of my spine cannot able to balance most days. I have fell off from the car a few times.
The Tribunal asked when he last fell over in the bathroom. The Applicant indicated 11 days prior to the hearing.
Tribunal: What happened on that occasion?
Applicant:I went to taking a bath when I need to bend and take a shampoo because all the shampoos is laying on the floor and, and when do bend and need to stand back again that I couldn’t able to balance some time with with my spinal condition and that let me fall off. I am a 57 years old man at this stage, um, I mean for, for the young child to fell off and stand is very quick. For for myself, I fell off and standing is very hard and I get a lot of I mean pain after when I fell off and I come straight to bed.
The Applicant described receiving a massage from his 16-year-old son and that he “felt better after the massage. My, my condition become a bit milder”.
Significantly, despite several questions from the Tribunal about how the most recent event happened, the Applicant did not describe any details of the experience of falling in his bathroom, such as how he landed, how he got up, whether anyone was home or which limb(s) were hurt or bruised. Further, no medical evidence was provided to confirm any injuries or investigations in relation to this apparent dramatic escalation in fall episodes. Falls or the risk of falls was not mentioned in any of the reports provided by Dr Young, Dr Kluver, Mr MacKenzie, or Mr Dwyer.
During the hearing, the Applicant was asked the furthest distance he was required to drive to attend an appointment. He confirmed that Dr Young and the supermarket were a 5-minute drive away, Mr MacKenzie was located 10 to 15 minutes away, his friends lived between 10 to 20 minutes away and his daughter’s school was 15 to 20 minutes away. He indicated that when he saw Dr Kluver, his rooms were approximately 30 to 35 minutes away and he would sometimes drive himself.
He told the Tribunal he can drive to the supermarket, walk around the supermarket to get basic items, and then drive home, with the round trip taking 20 to 30 minutes. He carries items in a trolley which he parks right next to his car. He indicated he often takes his sons with him so they can lift the groceries and put them in the car and they “hold my hands and take me out because I honestly have fall 3 to 4 times”.
In relation to walking, the Applicant said he could walk 5 to 10 minutes or 20 minutes, but he is afraid to do so because of the pain he experiences.
He explained his wife will check up on him while he is in the shower. “Other than that, I take a shower, come out, I clean myself, dry myself with the towel. But with the pain”. If his wife not home when he wakes up “I try to make a tea or coffee for myself. I can do those things sometimes, but sometimes I cannot able to do things” and its “pretty hard for me to to complete the task”.
Previously the Applicant worked as a chef and described being able to “cook anything”. However, he explained:
The last few years, which is I’m saying over and over my conditions getting bad. What what I used to do, I cannot do. Yeah, if I try to cook anything these days, it’s straight to lead me into, into the pain and I have to withdraw and I have to come and lay down in the bed”.
He indicated he could boil eggs sometimes but if he uses his right hand, it causes pain in his scapula.
The Tribunal asked the Applicant about whether he does any cleaning. He replied “that part, ma’am, I I do not do anything on that area. Mostly my missus does”. He was also asked if he ever puts a load of washing on to which he replied:
That area ma’am, I, I do not touch myself. I’ve never done washing. And, and I think for many, many years that that area, my missus take care of it and, and she know my situation and she try her best to stop me not to do any work, especially in the kitchen as well.
The Applicant told the Tribunal he can’t mow the lawns. This was the only claim consistent with Mr Dwyer’s report which found that lawn mowing and heavier cleaning tasks were outside the Applicant’s functional capacity.
The Applicant explained he recently completed a Justice of the Peace (JP) course on-line. He indicated he was motivated to do the course following his experience going through WorkCover litigation and recognising that many people from non-English speaking backgrounds struggle to navigate legal processes:
Now I have received those stamps and stuff and I told my community through my we have a group of community which is on WhatsApp group where you can write if ever you need anybody help with the JP need to be signed any documents, please come back to come to my house and I can able to help you out with these things….And then of course I see in my community there is many people need help with Centrelink issues or some other agencies issues and they cannot be able to explain.
The Applicant indicated he is assisting two families with insurance claims arising from traffic accidents. He obtained their authority to speak with the insurance company on their behalf. This evidence contrasts with Dr Young’s suggestion that the Applicant required “support for dealing with government and treating agencies”.[59]
[59] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023, at p37.
The Applicant recently sold his car online and purchased a new car with advice and input from his sons who were apparently eager to assist. He confirmed he makes his own decisions in relation to money. His wife doesn’t have a bank account in her own name, but she can access his wallet and bank card at any time to pay bills or do grocery shopping.
The Applicant gave evidence that he last saw Mr MacKenzie in April 2024, which he believed was his 6^th and final session under his annual mental health plan. He was asked how many times he has seen Mr McKenzie this year however that remained unclear to the Tribunal. The Applicant is not required to pay any gap in fees when visiting Mr MacKenzie and currently takes Dytrex which is an anti-anxiety and anti-depressant medication.
The Tribunal asked the Applicant whether he had followed the advice contained in Mr Dwyer’s report with respect to moving items in his kitchen from lower shelves to higher shelves to help prevent the need for bending. He replied “no ma’am, that hasn’t been changed because at this, I mean my missus and daughter…so they both now stand in the kitchen. If they see me in the kitchen, they said, dad, get out. Just tell me what you want and I go and get it for you”.
The Applicant told the Tribunal that if granted access to the NDIS, the main supports he would want is transport and physiotherapy. When asked when his last physio session was, he replied:
Um, I think the last I have maybe two years ago because every year they give me six. But I, I think this last two years I, I did not able to ask Dr Young because I think I was applied to the NDIS and I was thinking of, if I got access into the NDIS then then of course these kind of help, it does help me improve my condition”.
It was puzzling to the Tribunal why the Applicant had not requested a GP management plan to allow for 6 sessions of physiotherapy per year, as he had in previous years, particularly given his evidence that massage from his son provides some relief and his pain is getting worse.
Similarly, the Tribunal asked the Applicant about the advice provided in Mr Dwyer’s report:
Tribunal: And, uh, yesterday you, explained that, that you fell recently in the shower, as I understand it, from bending over to, to get the shampoo at the bottom of the shower. I wondered, given some of the recommendations in Dr Dwyer’s report, why you hadn’t moved the shampoo to a higher place. I don’t know if you have shelving in your shower, but there is often those cheap plastic or metal things that you can hang from your shower to sort of lift. I wondered why that hadn’t happened?
Applicant:…I mean, you don’t know that you’re gonna fall off, but the your body reacted. This is the thing I’m learning when I fell off...This wasn’t the first time. There’s three, four times happens before… But when you fell off you don’t know you’re going to fell off.
Tribunal:But I think my question is more about the pain issue, that if it's painful to bend over and Mr Dwyer made that clear recommendation, which I asked you about yesterday, about moving things from the lower kitchen shelves and bringing them up. They're obviously very simple, practical measures that could be taken. So, I was just interested to know why you hadn't made that simple adjustment.
Applicant:I could be, ma'am. I was very honest with you. I was full time mentally involved with this, this NDIS matter and cause I, I understand many of thing I I haven't addressed it yet, but but thank you, you bring it into my knowledge today and I will be looking into that. But I'm also looking into the of course, professional educated opinions, what I need to do to make my life more better. And, and, and there is some little things I know I can do it at home, but but yeah, I haven't addressed it yet.

It was again puzzling to the Tribunal that the Applicant appeared not to have followed simple and practical recommendations contained in Mr Dwyer’s report, given Dr Young’s view that “occupational therapy involvement could identify other areas which could be facilitated eg home modifications to improve independence in self care, aid mobility etc”.[60] It was also notable the Applicant had seemingly not implemented any of Mr Dwyer’s recommendations involving minimal cost, such as a long-handed sponge or toe-cleaner which retails for approximately $30 and would reduce the need to bend over. There was no other evidence of the need for home modifications, beyond the installation of a toilet handrail.
[60] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023, at p37.
On Sunday 7 July 2024, after the hearing concluded, the Applicant emailed the Respondent’s solicitor and counsel requesting they take new submissions dated 8 July 2024 into account. He also attached submissions dated 18 March 2024, already contained in the JHB at tab 12. The Tribunal was apparently mistakenly not copied into the correspondence. The Respondent’s solicitor forwarded the email and attachments to the Tribunal on 8 July 2024 noting that neither party had been given leave to file written submissions.
The Applicant claims in his new submissions that paragraph 3 of Mr Dwyer’s supplementary report dated 12 February 2024 “contains a statement, that upon my review, appears to be incorrect”.
For completeness, paragraphs 3 and 4 of Mr Dwyer’s report is reproduced here, including the questions / statements from the Respondent’s lawyers to Mr Dwyer (provided in the letter of instruction) in bold font:
3. The Applicant would like it noted that at around 9 am on the morning of the assessment, the Applicant took the following medications:
a. Two tablets of Norgesic BP 35 mg paracetamol 450 mg
b. One Panadeine Forte with Codeine phosphate hemiphydrate 30 mg paracetamol500 mg
c. One Palexia SR tapentadol 100 mg
The Applicant contends that his medication positively impacted the Applicant's functional capacity on the day of the assessment and has expressed concern that this was not taken into account. Can you confirm that you were aware that the Applicant had taken medication that improved his functional capacity and took this into account in making your assessment. Noting the medications and their effect on the Applicant, does that change your opinion on the Applicant's functional capacity as set out in The Report?
The information provided by [the Applicant] regarding his medication intake on the morning of the assessment was reported to me on the day of assessment and was documented in my report. Specifically, in Section 3.3.2 of my report, it is reported:
“3.3.2 Current medication
• Panadeine Forte – 1 tablet 6 hourly, particularly before bed
• Palexia – 1 tablet daily
• Norgesic – 1 to 2 tablets every 4 hours”
I therefore had been provided the medication information on the day of the assessment that [the Applicant] wishes to confirm. I further confirm that the impact of this medication was taken into account for the purpose of my previous assessment and therefore I have no reason to change my opinion regarding [the Applicant’s] functional capacity.
4. The Applicant states that the list of current medications on page 7 at 3.3.2 is incorrect. The Applicant reports that he takes the following medications:
a. Norgesic, BP 35mg paracetamol 450mg (one every four hours or as needed)
b. Panadine Forte (Codeine phosphate 30mg & paracetamol 500gm (one every three to four hours)
c. Palexia SR 100mg (one every three to four hours)
d. Mogadon 5mg (One at night before going to bed)
e. Catapres 100mg (One at night before going to bed)
f. Temaze 10mg (one at night before bed)
g. Dytrex 30mg (one at night before bed)
Noting the medications set out above, does this change your assessment of the Applicant’s functional capacity? Please provide your reasoning.
[The Applicant] has now provided an extended list of medications that he did not provide to me during the assessment. It is apparent that on the day of assessment he provided me with some, but not all, of his current daily medications. Looking closely at the list, it appears he provided me with his morning and/or day time medications (medications (a) to (c) as described in Question 3), but neglected to mention his night time medications. I acknowledge the updated list of medications provided by [the Applicant] and I assume his self-reported information in this regard is accurate.
Noting his function on the day of assessment was actually observed (and not estimated based on issues such as medication intake), I have no reason to change any information regarding [the Applicant’s] functional capacity.
The Applicant then submits:
You requested a tribunal member to consider the assessment of Mr. Glen Dwyer, an Occupational Therapist with 25 years experience. Regrettably, it appears that Mr. Dwyer continued to provide incorrect statements into the Supplementary Assessment. Specifically he stated that [the Applicant] did not provide medication at the time of the assessment. I would like to respectfully disagree with this assertion and refer you to my letter dated 27 March 2023…paragraphs a, b, c, d, e and g in the hearing tender bundle. This document clearly outlines all the medications that were indeed provided by [the Applicant].
I am unclear as to why the Council [sic] would request a Tribunal Member to weight Mr Dwyer’s Occupational Therapy Assessment, especially given the Mr Dwyer did not serve as a partial expert witness in this case.
Whilst the Tribunal accepts that the Applicant filed a list of medications some months prior to his assessment with Mr Dwyer, the Tribunal is satisfied that the Applicant only mentioned the three medications recorded in Mr Dwyer’s original report on the day of the assessment. From the Applicant’s oral evidence, it is clear the three medications mentioned are those that are routinely taken by him during the day. The Tribunal accepts that Mr Dwyer took these medications into account when forming the opinions contained in his report.
The Tribunal reminded the Applicant on several occasions to write down any questions or issues he wished to raise with Mr Dwyer during the hearing. The Applicant did not raise this issue with Mr Dwyer during his oral evidence and therefore Mr Dwyer did not have an opportunity to respond to the allegation. In any event, and not withstanding that neither party requested or was granted leave to file additional submissions, the Tribunal finds the Applicant’s submissions is predicated on a clear misapprehension or misreading of Mr Dwyer’s supplementary report and therefore has no bearing on the decision of this Tribunal.
Mr Dwyer (occupational therapist)
Mr Dwyer, occupational therapist, conducted an independent functional capacity assessment of the Applicant at his home on 6 June 2023. He completed his report (with photos) on 1 August 2023. A supplementary report dated 12 February 2024 responded to several issues raised by the Applicant.
Allegation of bias and/or misleading the Tribunal
Prior to the first TDH on 17 May 2024, the Tribunal became aware from correspondence between the parties that the Applicant was unhappy with several issues related to Mr Dwyer’s assessment and original report. These included the use of photos in the original report and a number of seemingly minor factual inaccuracies with no apparent relevance to the issues in dispute before the Tribunal.
On 15 December 2023, the Applicant wrote to the Tribunal and Respondent stating:
The… Applicant called Respondent lawyer on the Wednesdays the 6^th of December 2023 and clearly explained his position that, if the Occupational Therapy Assessment did not set a side, then applicant will file Application at the Queensland Civil and Administrative Tribunal (QCAT) to raise my complaint against Mr Dwyer OT Assessment, where Mr Dwyer mislead to tribunal and publish applicant photos without written consent by the Applicant.[61]
[61] Tab 11 of JHB Applicant Submissions dated 15 December 2023, at p55.
On the 18 March 2024, the Applicant wrote again to the Tribunal:
The Applicant Outline that, Mr. Dwyer alleged prepare a legal document (OT Assessment) and Signed Declaration, OT assessor Mr Dwyer continue mislead to tribunal The Applicant…reserves all its rights. This includes to commence criminal proceedings against Mr Dwyer at Magistrates Court of Brisbane and file for injunctive relief. The Applicant may also seek costs if any such proceedings are necessary.[62]
[62] Tab 12 of JHB Applicant Submissions dated 15 December 2023, at p57.
At the first TDH, the Tribunal sought to understand the Applicant’s concerns. The Applicant confirmed that he knew Mr Dwyer was taking the photos and did not object to him taking any photos but did not want them “published”. He was also upset that Mr Dwyer had, according to the Applicant, got the date of his work-place injury wrong and that his two eldest children were incorrectly reported as still living at home. The Tribunal explained to the Applicant that any factual inaccuracies could be put to Mr Dwyer at the hearing and that we would discuss the issue of the photos in more detail at the hearing. The Tribunal reiterated that the date of the workplace injury, over ten years ago, was not of any significance to the Tribunal in terms of considering the Applicant’s current functional capacity. The Tribunal also attempted to provide some reassurance to the Applicant that occupational therapists regularly include photos in independent functional capacity assessment reports for the Tribunal.
Prior to Mr Dwyer giving oral evidence at the hearing, the Tribunal asked the Applicant again about the circumstances surrounding the taking of photos.
Tribunal: I think I explained at the last directions hearing that I’ve seen the photos in the report. I’d seen them before I realised that there was any question or issue. Do you maintain that there’s an issue with that report or do you accept?
Applicant:No, ma’am. Uh, I still have those issues for the photos. I, the reason I wanted to point out, I never seen any previously any assessment I’ve been through or anything. I haven’t read that Mr Dwyer have to take my photos and publish in that…needs to know under what section of the law he has done that or he’s allowed to do that.
Tribunal: [Applicant], can I clarify when you say published, what do you mean, that they are put in a document or they’re published more? What do you mean by published?
Applicant: Published means that they put into the assessment…. Whenever I see that document, honestly, it makes me anger and it makes is it the right things to do to putting somebody face photos.
…
Tribunal:Can I ask you, you knew at the time he was taking photos?
Applicant:Uh, yes, ma’am. I know, he, he asked me to sit here or stand there or wherever. I, continue, I see that he got a camera, but he, I never know that he’s going to use those photos in the assessment, publishing in the assessment?
Tribunal:Did you ever ask him not to take photos?
Applicant:No, ma'am. If I know that he's using those photos to, to putting into, into the assessment, then definitely I will say no. I won't allow you to do that. But if ever, I mean, please understand the same thing happens with me when I was with work cover. They hire some private investigator and he took some of my photos while I was getting in the car and he did, you know..
Tribunal: That was someone you weren't aware of? He was hiding in the bushes or something like that?
Applicant: Absolutely, yes, yes.
Tribunal:So that that’s quite a different situation though to a person who you know is coming to do an assessment.
Counsel for the Respondent directed the Tribunal to the AAT guideline on expert witnesses which relevantly states at 3.1.[63]
A person giving evidence based on his or her special knowledge or experience in an area:
(a) has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience;
(b) is not an advocate for a party to a proceeding.
[63] ‘Persons giving expert and opinion evidence guideline’ available on AAT website at: >
Further 4.1 of the guideline states:
A written report prepared for the purpose of proceedings in the AAT must include the following information either in the body of the report or as an annexure:
(a) details of the person’s area of knowledge and his or her qualifications and/or experience;
(b) the letter of instruction or details of the questions or issues the person was asked to address in the report as well as a reference to any documents or other materials the person was given to consider;
(c) details of any facts and assumptions that inform the report and the sources for the factual information in the report;
(d) reasons for any opinion that is expressed.
Finally, 4.5 states:
Any report prepared for the purpose of proceedings before the AAT, whether it consists of factual information only or factual information and opinion, must include the following declaration:
I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal. No matters of significance have been withheld from the Tribunal.
Mr Liu submitted that photos evidencing the performance of tasks of daily living could be considered a matter of factual significance. He further submitted that an expert has significant discretion in terms of exercising their professional judgement about how to present data and evidence in their report.
At the commencement of giving oral evidence, Mr Dwyer was asked about the circumstances surrounding the taking of photos and the inclusion of photos in his original report.
Counsel:And in conducting this form of assessment, which you’ve just described, what, if any, is the relevance for an occupational therapist such as yourself of taking photographs of the person being assessed?
Mr Dwyer:Photographs are a commonplace for occupational therapists. They are a core piece of evidence, I guess, because they, they can be, well, they hope to paint a picture, I guess for people who aren’t in that home at the time of that assessment.
…
Usually I’m one of the only medical professionals involved in a case who sets foot into a home, I take that then as quite a serious component of the job. My job is to go into someone’s home, make decisions for myself about what I feel this person can and can’t do. But I need to accurately convey that to whoever the reader of the reports are and the relevant decision makers. And I see my role as quite an important role in helping to inform how those decision makers are going to make their decisions and hopefully accurate decisions.
Now typically your referral bundle contains so many written submissions and the difficult thing and I can only imagine for a decision maker if written material only is perhaps contains some conflicting information or some contradictory information or differing information. I imagine it is quite hard to get to the bottom of. The thing I particularly like about photographs is that they add some context to the opinion that I’m providing.
Later in hearing, the Applicant asked Mr Dwyer the following:
Applicant:And second thing look very honest. I’ve been through quite a few a lot of assessments and do you think you do require my consent authority, written consent authority before you taking any photographs in my house?
Mr Dwyer: I didn’t get written authority from you. We just spoke about it and there was verbal consent. And I guess I ratify that by knowing that as the assessments happening, there’s no secret to the photos. Obviously you’re looking at me in most of them.
…
ApplicantBut do you think that that we have quite strict laws in that area, which is NDIS and that is the area we are trying to cover it. But that law allows you to take photos somebody house without their consent?
…
Tribunal:I'll just clarify so that it's clear, is that verbal consent in these sorts of circumstances is, is also appropriate. And so whilst that there could be an option for written consent in this sort of situation, verbal consent is sufficient, particularly because as you confirmed to me earlier, you, you were aware that the photos were being taken, you were aware that you're participating in a, in a functional capacity assessment. And so in that sense, verbal consent is sufficient.
In his report, Mr Dwyer wrote: “The following photos of the home environment were taken with [the Applicant’s] permission at the time of the assessment”.[64]
[64] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos) dated 1 August 2023, at p516.
In his supplementary report, Mr Dwyer responded to the Applicant’s claim that he did not consent to his photographs being published in the report.
I confirm that the issue of taking photos, and their intended use in the subsequent report, was explained to [the Applicant] at the beginning of the assessment that I conducted with him on 6 June 2023. This discussion occurred at the same time the issues relating to privacy were explained to [the Applicant]. I confirm that [the Applicant] provided consent for the assessment to proceed on the basis of the discussions around the photographs and privacy.[65]
[65] Tab 25 of JHB, Supplementary report prepared by Mr Dwyer dated 12 February 2024, at p588.
Having considered the evidence, the Tribunal finds that Mr Dwyer obtained verbal consent from the Applicant and that there was nothing improper about his decision to include photos of the assessment in his original report. The Tribunal relies on the original report with photos and is satisfied they have evidentiary value.
The Tribunal was unable to ascertain any other grounds upon which the Applicant alleges Mr Dwyer has misled or has attempted to mislead the Tribunal or which could give rise to an actual or perceived conflict of interest or bias. The Tribunal is satisfied, for reasons set out in more detail below, that Mr Dwyer has significant expertise as an occupational therapist, that he conducted a professional assessment of the Applicant and provided the Tribunal with an independent report based on his genuine opinions. The Tribunal further finds that the photo evidence is relevant and assists the Tribunal to make the correct or preferable decision.
Report and oral evidence
Mr Dwyer told the Tribunal he has almost 25 years’ experience as an occupational therapist with most of his clinical experience in community-based settings which involve going into people’s homes and assessing people of all ages and with different conditions, disabilities, and/or injuries. He has conducted workplace-based assessments and interventions. He has also provided independent expert evidence to courts and tribunals for approximately 15 years.
Mr Dwyer explained to the Tribunal that his assessment included analysis of medical evidence regarding the Applicant’s conditions, observations of the Applicant’s demonstrated functional capacity and consideration of the home environment including available supports.[66] He described observing as much activity as possible including “all the typical activities that a person would normally do on a day to day basis from their own personal care to dressing, to accessing the shower, through to domestic activities in the home as well as their mobility in and around the home in their yard area”.
[66] See also Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos) dated 1 August 2023, at p542.
Mr Dwyer reviewed the medical evidence and proceeded on the assumption that the Applicant lives with chronic pain affecting the cervical and thoracic spine and the right scapula, secondary to a diagnosis of Central Sensitisation and Adjustment Disorder with mixed anxiety and depressed mood. The Applicant’s current symptoms were described as:
(a)Pain affecting the right side of the neck, right scapula and the upper back region
(b)Restricted range of movement of the right shoulder
(c)Limitations with flexion of the neck and upper back (cervicothoracic spine)
(d)Diminished activity tolerance
(e)High perception of increased pain associated with activity participation.[67]
[67] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos) dated 1 August 2023, at p513.

The Respondent acknowledges the Applicant has limitations in relation to his mobility and self-care and that his impairments fluctuate throughout the day. However, it considers that overall, the Applicant can mobilise independently in the home and community without assistive technology, equipment or assistance and he can complete most self-care tasks, albeit at a slower pace. The Respondent submits the Applicant’s limitations do not rise to the threshold of substantially reduced functional capacity in mobility or self-care.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do[110] while having regard to the fluctuating nature of any impairments and the overall impact of pain on the person’s functional capacity.[111] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[112]
[110] Mulligan at [55].
[111] See for example, Newell and National Disability Insurance Agency [2023] AATA 4140 at [123]; Galea and National Disability Insurance Agency [2022] AATA 2263 at [76].
[112] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].
As I have noted above, in determining whether the Applicant meets subsection 24(1)(c), the Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules. The Access Guidelines form part of the NDIA’s policy framework, and to the extent they are consistent with the Act, should be applied unless there is good reason not to do so.[113]
[113] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
In respect of subsection 24(1)(c) of the Act, concerning substantially reduced functional capacity, the Access Rules state:
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.
In Mulligan,[114] Mortimer J explained that rule 5.8 of the Access Rules is a deeming provision; that is, if a person’s circumstances are caught by its terms, they must be taken to have a substantially reduced functional capacity for the purposes of subsection 24(1)(c). However, her Honour made clear that considering a person’s circumstances through the prism of rule 5.8 is only part of the statutory task. If the deeming provision is not met, the decision maker must proceed to consider whether, regardless of rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[115]
[114] Mulligan at [66-67].
[115] Mulligan at [77].
The Tribunal’s first task is to determine if the Applicant’s circumstances are captured by the deeming provision. If the Tribunal finds the deeming provision does not apply, it must then consider the evidence before the Tribunal regarding his functional capacity in each domain and determine whether he meets the statutory threshold. The Access Guidelines naturally inform this task.
The deeming provision
Rule 5.8 prescribes circumstances or criteria to be applied in assessing whether the Applicant’s impairments result in a substantially reduced functional capacity to undertake the 6 domains of activity.[116]
[116] Foster at [56].
The Full Court of the Federal Court of Australia in Foster decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. Katzmann, Perry and Derrington JJ observed that:
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[117]
[117] Foster at [64]—[65].
For present purposes, the Tribunal is required to consider the bundle of tasks and actions which form the concept of each activity. Within each bundle, I must consider the tasks that the Applicant can do and those that he can’t do because of his impairments. As every applicant’s circumstances are different, the assessment must be practical and applied to the relevant circumstances of the individual applicant concerned.
Rule 5.8(a)
There are two key questions that must be considered when assessing whether the Applicant has substantially reduced functional capacity as per rule 5.8(a). The first question is to consider what it means to say someone is unable to participate effectively or completely in mobility or self-care. The second is to determine what is meant by assistive technology or equipment (other than commonly used items such as glasses) and whether it could be said the Applicant uses either.
In Foster, their Honours held that “[i]n the overall legislative scheme, the adverb ‘completely’ appears to be redundant, and in any event, unachievable”.[118] For this reason, the word ‘effectively’, should be the focus and is taken to mean “serving to effect the purpose; producing the intended or expected result”.[119] In this sense, perfection is not the standard.
[118] Foster at [83].
[119] Macquarie Dictionary (8^th ed, Macquarie, 2020) at p493 cited in Foster at [82].
Further, undertaking a task differently or more slowly to others will not necessarily mean a person cannot participate effectively or completely in an activity.[120] The experience and degree of pain is a necessary consideration of whether a person can effectively undertake a task.[121]
[120] Foster at [67].
[121] Beaumont and National Disability Insurance Agency [2024] AATA 891 at [34]—[35].
A person will not necessarily be deemed to have substantially reduced functional capacity simply because one or more tasks is unable to be completed without assistive technology. The significance of the task to the overall concept of the activity is also relevant. However, it remains for the decision-maker to assess the degree to which the person can participate in the activity.[122]
[122] Foster at [88].
The terms assistive technology or equipment is defined in the NDIS Act or Rules, however, it is defined in the Assistive Technology Operational Guideline, issued by the NDIA on 20 June 2022, in the following way:[123]
[123] As cited in Foster at [41].
The World Health Organisation has a universal definition of assistive technology.
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
•           mean you need less help from others
•           help you do things more safely or easily
•           help you to keep doing the things you need to do
•           allow you to do tasks independently
•           are personalised for you.
(My emphasis)
As discussed in the Tribunal’s recent case of Beaumont[124], this Tribunal is of the view that there is no inherent quality to assistive technology or equipment beyond the function to help people do things they normally can’t, or which are particularly difficult or painful. It does not necessarily need to be prescribed or purchased, for example, at significant cost.
Rule 5.8(b)
[124] [2024] AATA 891 (30 April 2024) at [113]–[118].
Under this rule, I must consider specific task or tasks that the Applicant usually requires assistance with to determine whether, overall, he experiences a substantial reduction in functional capacity in one or more of the domains. The term ‘assistance’ incorporates physical assistance, guidance, supervision or prompting.
Rule 5.8(c)
It is clear from the evidence that rule 5.8(c) is not relevant to the Applicant due to his current level of functional capacity.
The word “substantially” carries a high threshold in section 24(1)(c). Its meaning should be considered in the context that the NDIS was not intended to provide reasonable and necessary supports to every person with a disability. In assessing the Applicant's functional capacity, the Tribunal will take a 'wholistic' approach to determine what the Applicant can, and cannot do, having regard to the fluctuating nature of his impairments and the overall impact of the pain.[125] As the Tribunal said in Madelaine, having a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being”.[126]
[125] See for example, Newell and National Disability Insurance Agency [2023] AATA 4140 at [123]; Galea and National Disability Insurance Agency [2022] AATA 2263 at [76].
[126] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121].
Self-management
The Access Guidelines describe self-management as “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”.[127]
[127] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p9.
In the Applicant’s NDIS Access request form, Dr Young state the Applicant does not require assistance with self-management.[128] Mr Dwyer assessed the Applicant as independent in the domain of self-management. The Applicant gave evidence that he makes his own financial decisions and recently sold a car online.
[128] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022.
The Tribunal finds that the Applicant has functional capacity with respect to self-management.
Communication
The Agency considers “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”.[129]
[129] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
In the Applicant’s access request form dated 22 August 2022, Dr Young ticked ‘No’ in response to the question ‘Does the person require assistance to communicate’.[130] In response to targeted questions dated 5 July 2023, Dr Young noted the Applicant’s communication and learning was affected by the cognitive impairment and reduced energy focus.[131] She did not elaborate on the extent of the cognitive impairment, nor how such impairments were observed or assessed. It remains unclear to the Tribunal whether Dr Young is aware the Applicant has recently been accredited as a JP. There was no evidence of a formal cognitive assessment.
[130] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022, at p130.
[131] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023 at p37.
On 15 April 2023, Mr MacKenzie reported the Applicant can communicate effectively, but his ability to attend and concentrate for any significant period of time is severely diminished.[132] The Tribunal observed the Applicant engage in proceeding for periods in excess of 1 hour without a break over the course of two days.
[132] Tab 6 of JHB, Report prepared by Malcolm MacKenzie (Clinical Psychologist) dated 15 April 2023, at p14.
Mr Dwyer assessed the Applicant as independent with communication, noting he communicated clearly in English and there were no observed deficits during the assessment in relation to his capacity to understand others. This was consistent with the Tribunal’s observations during two directions hearings and the substantive hearing. Whilst the Applicant’s written and spoken English is not always precise or perfect, the intent is reasonably clear and discernible.
Accordingly, the Tribunal finds the Applicant has functional capacity to communicate.
Learning
This is “how you learn, understand and remember new things, and practise and use new skills”.[133]
[133] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
As outlined above under the domain of communication, both Dr Young and Mr MacKenzie indicated the Applicant’s learning was also affected by pain, fatigue, and cognitive impairment. Mr Dwyer concluded that the Applicant is independent in the domain of learning, although pain and fatigue may impact concentration levels.[134] “[The Applicant] spoke of his interest in pursuing legal studies, partly based on his previous WorkCover experience (including battles with his own Solicitor) and partly in his interest in advocating and supporting people with limited English language skills”.[135]
[134] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos), at pages 512 and 521.
[135] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos), at p521.
While the Tribunal accepts that pain and fatigue may impact the Applicant’s concentration levels at times, the Applicant’s recent completion of the JP course and his engagement with the Tribunal process demonstrates a reasonable capacity to learn. The Tribunal finds that the Applicant does not have a substantial reduction in functional capacity in the activity of learning.
Social Interaction
The Access Guideline refers to socialising as “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”. This domain requires the Tribunal to focus primarily on the skills of social interaction, not the opportunity to exercise the skills.[136]
[136] See Madeleine and NDIA [2020] AATA 4025 at [87]; Nika v NDIA [2021] AATA 2127 at [241].
Mr Dwyer reported the Applicant does not see his friends “as often as he used to in the past. He stated he often turns down offers for social occasions for fear that participating in activity will aggravate his pain levels. His primary interactions on a daily basis occur with his wife and their six children”.[137] The Applicant told the Tribunal he sometimes visits a friend’s home and is currently assisting two families with insurance claims relating to a car accident.
[137] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos), at p520.
The Tribunal accepts that pain impacts the Applicant’s desire to socialise, and he no longer participates in social activities with the same regularity and duration as he did prior to his workplace injury. However, the Tribunal is satisfied that he has functional capacity in the domain of social interaction.
Mobility
The Access guidelines describe mobility or moving around as “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”.[138]
[138] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
There was no evidence that the Applicant currently uses any assistive technology to mobilise in the community and therefore rule 5.8(a) does not apply.
Mr Dwyer acknowledged that there is an overlap between mobility and self-care, for example, the task of showering involves some mobility. For this reason, his recommendations for assistive technology will be considered in relation to self-care below.
The Applicant can and does drive to all key locations in his community, such as the local shopping centre, his treating medical and allied health practitioners, and friends’ homes. The Applicant indicated his wife and children sometimes drive him to appointments. He told Mr Dwyer and the Tribunal that his sons regularly accompany him to the supermarket, however he also gave evidence he drives to the shops simply to buy his six-year-old daughter ice chocolate.
The Applicant mostly visits places in the community that are within a five to twenty minute drive. Mr Dwyer concluded, based on his direct observations, that the Applicant could drive for approximately thirty minutes, and he could walk in the community for at least twenty-five minutes. “His observed walking tolerance is sufficient to access all essential services and no formal assistance is required in this regard”.[139] The Tribunal also finds the Applicant can independently mobilise around his home and yard, complete transfers (bed, chair, toilet, and shower) and reach items in cupboards and storage, though pain is exacerbated by reaching for items stored in the highest or lowest shelves.
[139] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos), at p523.
The Tribunal accepts the Applicant’s family members drive him to some appointments and his sons accompany him to the supermarket, however it was unclear how often this occurs and whether the Applicant requires this type of assistance. The Applicant’s evidence at the hearing was that he can and does drive himself to appointments and attends the supermarket alone. There was no clear explanation provided about why the Applicant requires assistance on some occasions and not others. The Applicant also gave evidence that his sons physically help him in and out of the car at the supermarket with their hands. Whilst this may have occurred on occasion, the Tribunal finds that the Applicant does drive by himself and can get in and out of the car without physical assistance. The Tribunal also accepts Mr Dwyer’s evidence that the Applicant did not raise any concerns about transfers to and from the car at the time of his assessment. The Applicant’s failure to mention this issue is inconsistent with his reported claims of difficulty getting out of the car.
Noting some of the concerns with the Applicant’s evidence outlined earlier in this decision, the Tribunal cannot be satisfied that any assistance from his family to mobilise in the community rises to the level of ‘usually’. Accordingly, the Applicant is not captured by rule 5.8(b) in relation to mobility.

The Tribunal accepts that the Applicant’s functional capacity may fluctuate, and he generally has greater functional capacity in the morning which then declines over the course of the day. However, despite these ups and downs, the evidence demonstrates that the Applicant can mobilise within the home independently. Further, the Tribunal accepts Mr Dwyer’s evidence that the Applicant was able to stand and walk around in the home for at least twenty-five minutes which is replicable in the community. The Tribunal also accepts that the Applicant can drive himself to all locations which he needs to visit with any regularity. Tribunal is not persuaded that the Applicant has substantially reduced functional capacity with respect to mobilising in the home or community.
The Tribunal finds the Applicant does not meet section 24(1)(c) in relation to mobility.
Self-care
Mr Dwyer recommended several items of assistive technology, such as a shower chair, grab rail beside the toilet and perching stool that would improve or increase the Applicant’s independence. He observed the Applicant was independent with self-care activities such as showering and cooking, and concluded assistive technology was not necessarily needed but may be beneficial because it would allow the Applicant to do tasks for longer or with greater comfort.
When it was put to Mr Dwyer that the Applicant had claimed to have experienced several falls since the assessment, Mr Dwyer was of the view that a shower chair would ameliorate the risk of falls in the shower. The Applicant did not provide any evidence that he needs any other assistive technology to complete self-care tasks.
The Tribunal asked the Applicant why he had not considered buying a cheap shower rack to hang in his shower so that he wouldn’t need to bend over to reach the shampoo. The Applicant’s response did not appear consistent with his evidence that he is experiencing severe pain on a daily basis and has fallen 3 or 4 times in the shower. In such circumstances, the Tribunal would expect to see relatively minor adjustments in daily life to reduce the need for movements which are particularly painful and/or potentially dangerous. Mr Dwyer’s original report, provided almost one year ago to the Applicant, recommended moving items from lower shelves in the kitchen to higher shelves to reduce bending. It is hard to reconcile the Applicant’s claim that he was ‘full time mentally involved with this, this NDIS matter” and yet not take small, practical steps to make his daily life a bit easier at minimal or no cost.
The Tribunal was unable to form a view on the exact circumstances surrounding the claimed falls, particularly given the absence of any corroborating medical evidence or explanation as to likely cause. There was no mention of falls by Dr Young in her letter dated 25 June 2024; nine days before the hearing where she said, “I have little to add”. However, the Tribunal accepts that a shower chair would ameliorate any future risk of falls when showering.
The Tribunal accepts the Applicant would benefit from the other forms of assistive technology suggested by Mr Dwyer such as the handrail, perching stool and long-armed brush / toe cleaner, despite currently being independent with toileting, showering and cooking simple meals. Noting the photos in Mr Dwyer’s original report depict the Applicant reaching his toes from a seated position using two different methods, the use of a shower chair may obviate the need for the latter two items.
The Tribunal finds that the Applicant can shower independently. However, consistent with the approach taken in Foster, even if the Applicant requires a shower chair to mitigate the risk of any falls while showering, this does not mean he can be deemed to have substantially reduced functional capacity because he needs assistive technology to perform one self-care task. The Applicant is not captured by Rule 5.8(a) in the domain of self-care.
In relation to Rule 5.8(b), the evidence suggests that the Applicant prefers to shower when his wife is at home. Dr Young suggested in two reports that the Applicant “needs some minor assistance with showering and dressing”[140] and that “I understand that the patient requires some help with aspects of self-care, grooming, dressing and health needs from his wife.[141] (My emphasis). Dr Young did not elaborate or explain how she formed her opinion.
[140] T26, NDIS Access Request Supporting Evidence Form, completed by Dr J Young (General Practitioner) 22 August 2022 at p132.
[141] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023 at p37.
Mr Dwyer said the Applicant did not require any physical assistance from his wife. However, he concluded the Applicant was unable to mow the lawns and or do heavy house cleaning. The Tribunal is satisfied that the Applicant can do most self-care tasks independently, albeit more slowly and with pain. Further, there are many self-care tasks that the Applicant can do but does not do because of domestic arrangements in the home. The Tribunal accepts Mr Dwyer’s evidence that if his family was away for 3 weeks, the Applicant could manage all essential self-care tasks independently.
The Tribunal finds that the Applicant requires assistance with the tasks of lawn mowing and heavy house cleaning, such as scrubbing a bathroom floor. In isolation, the Tribunal is not satisfied that these tasks are significant enough to meet the threshold of usually requires assistance in the domain of self-care and therefore Rule 5.8(b) does not apply.
In considering whether the Applicant could otherwise be said to have substantially reduced functional capacity, the Tribunal is not satisfied that the Applicant reaches this threshold. The Applicant appeared at times to exaggerate the impact of pain on his functional capacity, such that even making a cup of tea posed a significant challenge. This evidence was completely at odds with the report of Mr Dwyer and the photos of the Applicant which portrayed a man at ease during the assessment which took place over 2.5 hours; something which appeared to influence the Applicant’s anger with respect to their inclusion into evidence. While it is unknown how Dr Young formed the opinions expressed in her reports, the Tribunal assumes that a significant portion of the information contained in her reports was self-reported by the Applicant, with estimates of his functional capacity appearing to reduce over time but without any clear accompanying explanation, medical or otherwise. The Applicant’s reported use of Palexia compared to the prescription records was a further troubling feature of this case.
The Tribunal finds the limitations experienced by the Applicant do not give rise to a substantially reduced functional capacity in the domain of self-care. Accordingly, the Applicant does not meet section 24(1)(c).
Social and Economic Participation – Subsection 24(1)(d)
The Respondent accepts that subsection 24(1)(d) of the Act is met.
The Tribunal agrees that this is an appropriate concession by the Respondent. The Applicant is no longer able to work, and pain interferes with his inclination to socialise and participate in community life, particularly outside the family unit. The Tribunal is satisfied the Applicant meets subsection 24(1)(d).
Lifetime NDIS assistance – Subsection 24(1)(e)
The Respondent contends that subsection 24(1)(e) of the Act only arises for consideration if the Tribunal finds that subsection 24(1)(c) is met. This is because where a person’s impairment does not result in a substantially reduced functional capacity, the Tribunal could not be satisfied that “the person is likely to require supports under the [NDIS] for the person’s lifetime”. The Tribunal is not satisfied the Applicant meets subsection 24(1)(e).
The Tribunal finds that the Applicant does not meet the disability requirements under section 24(1).
SECTION 25 – EARLY INTERVENTION
Having concluded that the Applicant does not satisfy section 24, the Tribunal is now required to consider his access to the scheme under section 25.
The Respondent accepts that the Applicant’s physical impairments are permanent for the purpose of section 25(1)(a). As discussed above, the Tribunal is satisfied the Applicant’s physical impairments are permanent but is not satisfied on the available evidence that the Applicant’s psychosocial disability is permanent or likely to be permanent.
Part 6 of the Access Rules describe the early intervention requirements under section 25 of the NDIS Act:
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
…
6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity may improve.
6.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
6.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Deciding whether the provision of early intervention supports is likely to benefit the person
6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Where evidence is required
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Respondent contends that the Applicant does not meet the early intervention requirements because his conditions are long-standing[142] and the Applicant could access supports through the Queensland Community Support Scheme and the Queensland Community Transport Program and is therefore not most appropriately funded through the NDIS.[143]
[142] See Goodwin and National Disability Insurance Agency [2021] AATA 1438 at [125].
[143] See section 25(3) of the NDIS Act.
Dr Young said in response to targeted questions “I agree with his treating Pain Specialist and Clinical Psychologist that given the clinical course of his illness in the last ten years, the impairments will be lifelong… With the passage of time, the impact of his conditions will be compounded by age related degeneration. He will likely require more assistance and support”.[144] She also believed access to regular physical therapies, such as physiotherapy, exercise physiology, hydrotherapy and therapeutic massage would help relieve his physical symptoms and slow the degeneration of his musculoskeletal condition.[145]
[144] Tab 8 of JHB, Response to targeted questions prepared by Dr Jennifer Young (General Practitioner) dated 5 July 2023 at p38.
[145] Tab 22 of JHB, Occupational Therapy Functional Capacity Assessment prepared by Mr Dwyer (with photos), at p36.
The Applicant was asked at the hearing whether there were any supports that might reduce his overall needs in the longer term if they were provided, for example, over a period of one or two years. The Applicant was unsure but reiterated that Dr Young had suggested hydrotherapy, physiotherapy, and transport. The Applicant had not engaged with his physiotherapist for 2 years and there is no current evidence before the Tribunal about the possible efficacy of regular sessions.
The Tribunal notes the approach adopted in the decision of Puster:[146]
The Tribunal does not accept the suggestion put by the respondent’s representative that this necessarily requires an assessment in close temporal proximity to a diagnosis, but it does require an assessment at the early stage of an impairment’s trajectory. In this sense, the Tribunal accepts the contention put by the applicant’s representative that in the case of a degenerative condition it may be possible for an applicant to meet the early intervention requirements without a close temporal connection to a diagnosis but where the impairments that flow from the underlying condition can still be said to be at an early stage of their trajectory.
[146] Puster and National Disability Insurance Agency [2023] AATA 1760 at [67].
I agree with this approach. The trajectory of the Applicant’s physical impairments, the associated limitations on his functional capacity and the various pain interventions have been documented over a long period of time, without any significant improvement. Accordingly, I am not satisfied the provision of early intervention supports would reduce the Applicant’s need for future supports pursuant to section 25(1)(b).
As the Applicant has not met either the disability requirements or the early intervention requirements of the Act, the Tribunal must affirm the decision under review. Should the Applicant’s functional capacity change in the future, he may make a further NDIS access request before turning 65 years of age.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for the decision herein of Member N Purcell.

..........................[sgd]..................................
Associate
Dated: 27 August 2024

Date(s) of hearing: 4 and 5 July 2024 (by video)

Applicant: Self-represented

Counsel for the Respondent:
Solicitors for the Respondent:
Mr Thomas Liu
Ms Angel Fernandes, Sparke Helmore

Date(s) of hearing:	4 and 5 July 2024 (by video)
Applicant:	Self-represented
Counsel for the Respondent: Solicitors for the Respondent:	Mr Thomas Liu Ms Angel Fernandes, Sparke Helmore