Salter and National Disability Insurance Agency

Salter and National Disability Insurance Agency [2023] AATA 1273 (19 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/4890
Re:Mrs Vicki Salter
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member T Bubutievski
Date:19 May 2023
Place:Sydney

The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that Mrs Salter meets the disability requirements for access to the NDIS as set out in section 24 of the National Disability Insurance Scheme Act 2013 (Cth).
.....................[SGD].......................
Member T Bubutievski
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – osteoarthritis - chronic pain – permanence - whether substantially reduced functional capacity – decision under review set aside
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
Cases
Holmes and National Disability Insurance Agency [2017] AATA 2750
Mulligan v National Disability Insurance Agency [2015] FCA 544
Nika & National Disability Insurance Agency [2021] AATA 2127
Jourifan & National Disability Insurance Agency [2020) AATA 1883
Kilgallin and National Disability Insurance Agency [2017] AATA186
Madelaine and National Disability Insurance Agency [2020] AATA727
MHZQ & National Disability Insurance Agency [2019] AATA 810
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
Operational Guidelines, ‘Applying to the NDIS’, 1 August 2022
REASONS FOR DECISION
Member T Bubutievski
19 May 2023

This application is about whether Mrs Vicki Salter (Mrs Salter) should be granted access to the National Disability Insurance Scheme (the NDIS). At the time of her application to become a participant, she was 60 years of age. In her application for access to the NDIS, Mrs Salter described her primary disabilities as Tarlov’s cysts, osteoarthritis and chronic pain.
Following her application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 19 May 2021, that Mrs Salter was ineligible to access the NDIS. She sought internal review of this decision by the Agency and on 5 July 2021, an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Mrs Salter’s application to this Tribunal for external merits review under section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
Mrs Salter had a back injury for which she had surgery in 2005. Subsequent radiological scans showed that she also has osteoarthritis of the facet joints in her spine and Tarlov’s cysts. Mrs Salter has a diagnosis of chronic pain. Mrs Salter’s chronic pain has impaired her ability to function.
Mrs Salter contends that she meets the access criteria under section 21 of the NDIS Act.
To gain access to the NDIS, under section 21 of the NDIS Act, Mrs Salter is required to meet:
(a)the “age” access criteria;
(b)the “residence” access criteria; and
(c)either the “disability” access criteria or the “early intervention” access criteria.
The Agency accepts that Mrs Salter meets both the “age” and “residence” access criteria, but contends that she does not meet the “disability” or “early intervention” access criteria.
LEGISLATIVE FRAMEWORK
Before proceeding further, it is necessary to note that amendments to sections 24 and 25 of the NDIS Act came into effect on 1 July 2022. The Tribunal had not completed its review of Mrs Salter’s application by the time the amendments commenced. Both the original decision which the Agency made regarding Mrs Salter’s access request, and the Agency’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.’
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
‘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.’
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
(1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a)    an access request made on or after the commencement of this item;
(b)    an access request that was pending immediately before that commencement;
(c)    a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under section 18 of the NDIS Act, it follows that the term ‘an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement.’ The Revised Explanatory Memorandum[1] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under section 18 of the Act has not been finalised prior to the commencement.’
[1] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
Section 24 of the NDIS Act provides as follows:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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.
The early intervention requirements are set out in section 25 of the Act:
(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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 27(a) of the NDIS Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of section 24(1)(b) or section 25(1)(a)(i) or (ii) of the NDIS Act. Such rules have been prescribed, namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDISAccess Rules). The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.
Specifically, rules 5.4 to 5.7 of the NDIS Access Rules explain when a condition can be assessed to be “permanent”:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An 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, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
Section 27(b) of the NDIS Act also provides that the NDIS Access Rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in ‘substantially reduced functional capacity’ of a person to undertake one or more activities for the purpose of subsection 24(1)(c) of the NDIS Act.
Specifically, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to subsection 24(1)(c) of the NDIS Act and provides as follows:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
The objects of the NDIS Act are set out in section 3. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the NDIS Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the NDIS Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the NDIS Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[2] The way they are written has changed significantly over time to make them more user friendly for potential applicants and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[2] Operational Guidelines, ‘Applying to the NDIS’, 1 August 2022 <
The parties were content to accept the Tribunal’s member file in evidence, as this contains the sum of all the documents lodged by both parties. This was taken into evidence (Exhibit 1).
Mrs Salter called her daughter and primary carer, Ms Tara Salter, as a witness. The Respondent called A/Prof Gordon Davies (independent expert psychiatrist) and Mr Gary Stretton (independent expert occupational therapist).
ISSUES BEFORE THE TRIBUNAL
In making the access decision in Mrs Salter’s case, the Agency decided that Mrs Salter met the criteria in section 24(1)(a) of the NDIS Act, as having a disability attributable to “spinal pain.”[3] The Agency did not accept that Mrs Salter’s impairment was or was likely to be permanent as the information provided “….does not indicate that all available and appropriate treatment options that are likely to improve the impacts of [her] disability have been explored….”[4]
[3] Exhibit 1; Tab 12, T-Documents at T9.
[4] Ibid.
On internal review, the reviewer decided that Mrs Salter meets the criteria in section 24(1)(a) of the NDIS Act in respect of Tarlov’s cysts; osteoarthritis and chronic pain, but also decided that her disability could not be considered to be permanent. The reviewer stated that this was because of a letter from Dr Peter Slattery dated 12 June 2019, which recommends that Mrs Salter engage in interdisciplinary pain management. The reviewer noted that there is an absence of evidence that Mrs Salter had in fact engaged in that treatment.[5] Hence, the internal reviewer concluded that section 24(1)(b) of the NDIS Act was not met. In addition, the reviewer concluded that the criteria in section 24(1)(c) and (e) and section 25 were not met.[6]
[5] Exhibit 1; Tab 12, T-Documents at T2.
[6] Ibid.
It was common ground between the parties that Mrs Salter met the age requirements in section 22 and the residence requirements in section 24 at the time that she applied for access to the NDIS. The NDIA argued that:
(a)There is insufficient evidence to establish that Mrs Salter’s Tarlov’s cysts, osteoarthritis and chronic pain are permanent, or likely to be permanent – sections 24(1)(b), 25(1)(a) and (c);
(b)Mrs Salter does not have a substantially reduced functional capacity in any of the relevant domains – section 24(1)(c);
(c)Mrs Salter is not likely to require the support of the NDIS for her lifetime – section 24(1)(e); and
(d)support for Mrs Salter’ conditions is not most appropriately provided through the NDIS – section 25(3).
Mrs Salter contended that her chronic pain and level of disability are permanent and cause her to have a substantially reduced functional capacity in a number of domains including mobility, self-care, social interaction and self-management. She stated that her condition continues to deteriorate.
For the reasons set out below, the Tribunal is satisfied that the evidence does establish that Mrs Salter’s chronic pain is permanent, or likely to be permanent. It is also satisfied that she had a substantially reduced capacity in at least one of the relevant functional domains. This means that the requirements of section 24 of the NDIS Act for access to the NDIS are met.
FACTS
The medical evidence
The medical evidence put before the Tribunal about the treatment and history of Mrs Salter’s medical conditions covers a significant period of time. Of relevance are the following documents and opinions:
·Letters from Dr Peter Slattery (Staff Specialist/Senior Consultant) of the Repatriation General Hospital Pain Management Unit and Flinders Pain Management Unit dated 12 May 2015; 2 March 2016; 1 June 2016; 27 July 2016; 30 November 2016; 19 July 2017; 27 September 2017; and 12 June 2019;[7]
·A letter from Chrisovalantis Tsimiklis, Neurosurgical Registrar, dated 20 March 2018;[8]
·A letter from Dr Nick Vrodos, Neurosurgeon, dated 19 December 2017;[9]
·Letters from Professor Matthew McDonald, Neurosurgeon, dated 12 September 2013 and 21 June 2018;[10]
·A letter from Dr Spiro Doukakis, dated 19 April 2021;[11]
·A letter from Dr David Bursill, Rheumatologist, dated 12 March 2015;[12]
·A letter from Dr Philip Cornish, Specialist Pain Medicine Physician, Flinders Pain Group, dated 15 February 2012;[13]
·Assorted x-rays, CT scans and MRIs taken between 2005 and 2021.[14]
[7] Exhibit 1 at Tab 7.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Exhibit 1 at Tab 12, T-Documents at T7.
[12] Exhibit 1 at Tab 7.
[13] Ibid.
[14] Exhibit 1 at Tab 6.
In summary, the medical evidence discloses that Mrs Salter injured her back in 2005 and had a microdiscectomy at L5/S1. She had some improvement after the surgery but has continued to experience ongoing pain. The CT and MRI scans show widespread degeneration of the facet joints in her spine, which is more pronounced at the lumbar level. She has a loss of height at the L5/S1 level which is consistent with her prior surgery. She also has Tarlov’s cysts at T10/11, T11/12 and S2.[15]
[15] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 12 June 2019.

Dr Slattery notes that Mrs Salter reported that she was unable to tolerate a number of the medications trialled in respect of her pain. Dr Slattery was of the view that there was likely a significant neuropathic component to Mrs Salter’s pain.[16] Mrs Salter received some reduction in her pain for a few weeks following a CT guided cortisone injection. On 30 November 2016, Dr Slattery wrote:
“..Unfortunately I don’t think there are any more interventional options for pain management; her report of side effects with both Palexia and the foraminal steroid injection is a similar pattern to that which she has displayed in the past…”[17]
[16] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 1 June 2016.
[17] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 30 November 2016.
A psychiatry assessment of Mrs Salter in 2015 (during her attendance at the Flinders Medical Centre Pain Unit), noted a coincidental increase in Mrs Salter’s back pain at times of significant stress in the absence of any physical changes, but states that Mrs Salter has a resilient coping style. Mrs Salter was found to have no specific psychiatric disorder and not depressed. It was thought that there was a “…significant psychological contribution to her pain experience…”[18] Mrs Salter was offered a place in a Mindfulness and Pain program, but cancelled her attendance as she did not think that she could sit through the two-hour sessions. She was instead referred to individual clinical psychology, which she attended.[19]
[18] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 12 May 2015.
[19] Ibid.
Mrs Salter was discharged from the Flinders Medical Centre Pain Unit in 2019. At that time, Dr Slattery noted that Mrs Salter was not interested in interdisciplinary pain management. She reported that physiotherapy had made her condition worse and that she had derived no benefit from attendance at psychotherapy. Dr Slattery states:
“… As Vicki is focused on Tarlov’s cyst at present and emphatically not interested in interdisciplinary management at this stage, I’ve made no further appointments to see her, but would be happy to review her should circumstances change…”[20]
[20] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 12 June 2019.
Professor Matthew McDonald, Dr Chrisovalantis Tsimiklis and Dr Nick Vrodos have all expressed an opinion that Mrs Salter’s Tarlov’s cysts are benign and not the cause of her pain.[21]
[21] Exhibit 1 at Tab 7 - letter of Professor Matthew McDonald, dated 21 June 2018; letter of Dr Chrisovalantis Tsimiklis, dated 20 March 2018; and letter of Dr Nick Vrodos, dated 19 December 2017.
Professor McDonald states that he performed a right-sided microdiscectomy at L5/S1 in 2005 and saw Mrs Salter again 2013. In June 2018, Professor McDonald wrote:
“… I have explained to Vicki that I do not know why she is struggling with her pain. She has really had a multitude of treatments in the past and there is nothing really that I can add that I think will help her with her management…”[22]
[22] Exhibit 1 at Tab 7, letter of Professor Matthew McDonald dated 21 June 2018.
Mrs Salter’s evidence
In her evidence before the Tribunal, Mrs Salter confirmed that she was struck by a car at the age of 13. She said that she went up onto the bonnet of the vehicle and was knocked out. She was hospitalised for a concussion. She had a recollection of attending specialist appointments in respect of her neck following the accident but explained that she had no residual neck pain after the accident and does not currently have neck pain.[23]
[23] Transcript, Day 2, 24.
Mrs Salter stated that she had experienced sciatica approximately three times in her life prior to 2005, including in her last pregnancy in 1995. She had attended physiotherapy for treatment. Approximately six weeks before she gave birth to her last child, she had what she thought was a cortisone injection under an epidural administered by an orthopaedic surgeon. She did not think it gave much relief at the time, but stated that the sciatica resolved several months after the delivery.[24]
[24] Transcript, Day 2, 24-25.
Mrs Salter said that one morning in 2005, she woke up with lower back pain, which she described as “agony”. She had been running in the Rundle Street Mall the day before to get out of the rain but did not fall and did not notice any specific injury. She saw her doctor and then a physiotherapist, but her condition did not improve. She was referred to Dr Matthew McDonald, a neurosurgeon, who advised her that she had ruptured a lumbar disc and performed a microdiscectomy. Mrs Salter confirmed that in addition to the back pain she also had sciatica at that time, but could not recall whether it was only in one leg or in both.[25]
[25] Transcript, Day 2, 25-26.
Mrs Salter said that she underwent the surgery on 5 December 2005. She did not engage in any rehabilitation or physiotherapy following the surgery. Her evidence was that Dr McDonald did not consider it necessary. He placed a limitation on her during her recovery period that she could only be upright for 20 minutes at a time for the first month following surgery. Mrs Salter said that following the surgery, her back felt better than it had before, but she was never able to stop taking painkillers and over time she spent more and more time lying down rather than upright.[26]
[26] Transcript, Day 2, 26.
In 2010 Mrs Salter and her family were going on a trip to Bali. Mrs Salter attended her GP and asked for sufficient Digesic (the painkiller she was taking at the time) to get her through the trip. The GP asked her how she normally managed her pain. Mrs Salter said that she told him that she spent most of her time lying down on the couch. She told the Tribunal that the doctor said words to the effect of “that’s not how you’re supposed to live” and referred her back to Dr McDonald.[27]
[27] Ibid.
Mrs Salter said that she has never engaged in any regular exercise but that she did love to walk and that was her exercise. She said that she made a point of returning to walking after her surgery but that she did it less and less between 2010 and 2013. She explained that if the footpath was not even and caused her to jar her back in any way she would have “enormous pain for a few days.” In the end, she stopped her regular walks in around 2013.[28]
[28] Transcript, Day 2, 27.
The Tribunal asked Mrs Salter about her attendance at the Flinders Medical Centre Pain Clinic. Mrs Salter said that she was referred there directly from the surgical ward for an epidural steroid injection to be administered by Dr Peter Slattery. Mrs Salter said that she had not met Dr Slattery before and on discussion with him, he could not guarantee that the injection would not make her condition worse. She said that he decided not to proceed with the injection at that time. Mrs Salter’s hospital notes showed this to have been on 26 June 2014. Dr Slattery has noted that Ms Salter accepted a referral for a multidisciplinary assessment instead. Mrs Salter confirmed that she subsequently did have a further procedure. Her medical records show this to have been a CT guided nerve block on 8 August 2016.[29]
[29] Transcript, Day 2, 27.
Mrs Salter said that “she felt like a guinea pig” at the pain clinic as “they put you on whatever is the fad at the time.” She said that Lyrica was the fad at that time and it did help her with the pain, but it gave her “dementia like” symptoms. She said that they attempted to reintroduce it at different doses around four times, but she was not successfully able to tolerate it. She said that she tried “many drugs” through the pain clinic and did not have success. Mrs Salter said that she found her attendance at the pain clinic to be an “unpleasant [and] painful experience” because of the pain she felt during the trip in the car to the hospital and then sitting around waiting to see the doctor.[30]
[30] Transcript, Day 2, 28.
The Tribunal asked Mrs Salter about the suggestion that she have rhizolysis. Mrs Salter said that she researched this procedure and did not want to have it done and that she also felt that her treating GP, Dr Hamer, was not in favour of it. Mrs Salter explained that Dr Hamer was her GP between 2011 and his retirement in 2020 and that she had a great deal of faith in him. He was also not in favour of Dr Slattery’s recommendation that she trial Norspan patches for pain relief and did not prescribe them.[31]
[31] Transcript, Day 2, 28; Transcript, Day 2, 76.
The Tribunal asked Mrs Salter about her attendance at psychology sessions through the pain clinic in 2015. Mrs Salter agreed that she had attended an initial appointment with a psychologist where it was recommended that she attend three further appointments, and that she had done so. Mrs Salter said that she could not really remember any of the pain management techniques that had been discussed with the psychologist other than meditation. Mrs Salter said that she had tried meditation once on Youtube and a second time using an app, but that she was not able to do it. She explained that all she did was lie there and think about the pain and said she is “not good left alone with [her] thoughts.”[32]
[32] Transcript, Day 2, 29.
The pain clinic also referred Mrs Salter for physiotherapy. The physiotherapy notes show that on 21 June 2017, Mrs Salter was provided with a basic core strengthening program. She described an exercise where she was to lie on her back and lift her hands while tightening her core. Mrs Salter said that she thought this exercise was easy and that she did it a couple of times on the day after attending physiotherapy. She said that on the following day, her pain had worsened and she was unable to even lift her kettle to fill her hot water bottle. Mrs Salter was of the opinion that her pain has never gone back to the way it was before she did the exercises. Mrs Salter said that she had told Dr Slattery that physiotherapy had worsened her pain, and that while he had told her something like “99% of people would do well from [physiotherapy],” no further physiotherapy appointments were made for her. Mrs Salter has not had chiropractic treatment since her surgery although she did have it prior to 2005.[33]
[33] Transcript, Day 2, 30.
The Tribunal asked Mrs Salter about the recommendation from Dr Slattery, contained in his letter of 12 June 2019, that she attend interdisciplinary pain management. Mrs Salter acknowledged that this was offered again in 2019 as a means of reducing her pain but said that she felt that she could not endure the attendance at psychology visits due to the extent of her pain. She said that it would probably be good to have somebody to talk to and that she would not be averse to doing psychology sessions by telehealth. She has not spoken to her current GP about this and does not have a current mental health care plan.[34]
[34] Transcript, Day 2, 34.
Mrs Salter is of the opinion that her back pain is as a result of the Tarlov’s cysts, which are shown on her MRI. She said that in addition to her lower back pain and sciatica, she also experiences considerable pain at the thoracic region, particularly on the right side, and this is where there are cysts. The Tribunal put to Mrs Salter that the medical evidence before the Tribunal is that the cysts are benign and are not the cause of Mrs Salter’s pain. Mrs Salter said that this may be the opinion of neurosurgeons in South Australia, but her own research on the internet has convinced her that they are the source of her thoracic pain. Her understanding of what she was told by the specialist in Adelaide was that nothing can be done about them even if they are the cause of her pain. She found a neurosurgeon in Sydney that will remove Tarlov’s cysts, but he does not take public patients. She was not sure if surgery could be done or that she would be willing to undergo a surgical procedure if it was offered to her.[35]
[35] Transcript, Day 2, 29, 53.
Mrs Salter also has emphysema, which is treated by the use of a Spireva inhaler prescribed by her GP. She does not see a specialist. Mrs Salter stated that she is unwilling to have blood tests or other investigations which may result in her being required to see a specialist, due to the pain she experiences attending physical appointments.[36]
[36] Transcript, Day 2, 31.
The Tribunal asked Mrs Salter about her ability to care for her home and undertake activities of daily living. Mrs Salter said that she has not really done heavier housework, such as vacuuming and cleaning the bathroom, since her surgery in 2005. She said that she had paid cleaners for around six months after the surgery and then her husband used to be able to do the housework prior to his admission to aged care in December 2021. Mrs Salter said that she is still able to do cooking and tidying. She does her own washing and hangs it on a clothes airer in the laundry. She explained that her daughter, Tara, does the bulk of the housework. She said that in the weeks prior to the hearing, Tara had gone on a retreat for three days and that during those three days, she just had toasted sandwiches for meals. She can order shopping online and have it delivered, or Tara will pick it up. Mrs Salter said that she will sometimes go for days without showering due to the pain.[37]
[37] Transcript, Day 2, 31-32.
Mrs Salter said that the last time she drove her car to collect shopping was in December 2022. She drove to a doctor’s appointment in mid-January 2023. She also said that she had another appointment with the doctor the week before the hearing and had to catch an Uber because her car had a flat battery. Mrs Salter stated that she no longer goes out without Tara unless it is absolutely necessary. If she and Tara go out together, Tara drives. Mrs Salter said that she has to attend at least one appointment each year with her GP and that otherwise she has consultations by telephone. The doctor sends her prescriptions to her phone and she then forwards them to the chemist, who delivers the medication to her. At the last appointment, Mrs Salter had to see a nurse for a care plan prior to seeing the doctor. Mrs Salter told the nurse that she did not want any investigations.[38]
[38] Transcript, Day 2, 52.
Mrs Salter’s husband developed early onset dementia. The Tribunal put to Mrs Salter the Respondent’s view that Mrs Salter’s pain increased during the period of her husband’s deterioration, with there being a connection between the increase in pain and Mrs Salter being emotionally distressed. Mrs Salter agreed that her pain is worse when she is stressed or worked up but denied any link between her husband’s dementia and the cognitive decline and psychological stress which worsened her pain. She said that she thought that her pain got worse when her husband deteriorated because she was physically having to do more because her husband was unable to. Mrs Salter said that she did the bulk of her grieving prior to her husband’s diagnosis with dementia in 2015, as his personality had changed so significantly that she had intended to end the marriage. Mrs Salter stated that she had told Mr Salter that “if there’s not something wrong with you, you and I are done.”[39]
[39] Transcript, Day 2, 32-33; Transcript, Day 2, 52.
Although Mrs Salter’s husband is in care only a five-minute drive from home, Mrs Salter said that she does not visit him. They talk on the phone or Facetime daily. She has been to the facility to attend to doctors’ meetings and she has occasionally taken things to him such as shampoo or deodorant. Mrs Salter said that her husband loves it in the facility. She said that they were a loving, close couple, but that he is no longer the person that she married. Mrs Salter said that she did not take her husband out of the facility for Christmas because she is unable to manage his personal needs.[40]
[40] Transcript, Day 2, 51-52.
Mrs Salter said that she uses television to distract herself from the pain and what she calls “drama” from any interpersonal conflict or stress. She said that she considers herself to be a resilient person who uses humour to cope.[41]
[41] Transcript, Day 2, 32-33.
The Tribunal asked Mrs Salter about a statement in a psychiatric report that her mother had similar back issues and her own behaviour may have a psychological link to watching her mother’s behaviour. Mrs Salter said that her mother worked full-time and did not have chronic pain, although she did recall a single incident where her mother injured her back and spent several days in bed. Mrs Salter described her mother as tough.[42]
[42] Transcript, Day 2, 35.
Mrs Salter confirmed that her statement of lived experience of 10 December 2022 was correct at the time it was written, but said that she constantly deteriorates, so little things have changed since then. Mrs Salter said that her disability is pain because it is this which stops her being able to bend, stretch and reach. She has pain in the sacrum when she wakes of a morning and also pain on the right side of her thoracic spine, which is worsened by using her right (dominant) hand. She described the thoracic pain as “like a knife.” She has no pain in her arms or hands. The sacral pain is worse when sitting. It is also very common that she has pain down one or both legs. She describes this pain as like “ants crawling” on her legs and said that it is relieved by walking.[43]
[43] Transcript, Day 2, 35-39.
Mrs Salter currently takes one Endone, one Panadeine Forte and one Panadol four times per day. She was unaware of the direction by her doctor that she is only to take this much medication if it is needed, but said that it is always needed. She also takes 50 mg of Endep and 45 mg of Oxazepam each day (3 x 15mg doses). Mrs Salter said that she has been on this medication regime since 2019. She previously took more medication than this, but needed to be on less medication to be discharged from the pain clinic. Mrs Salter confirmed that Dr Hamer had also tried several antidepressant medications with her as he was of the opinion that she was suffering from situational depression. None of the antidepressant medications suited her. Mrs Salter also occasionally takes Maxalon as the pain sometimes makes her feel like she will vomit, or she does vomit. She also takes Somac for gastritis.[44]
[44] Transcript, Day 2, 40-44.
Mrs Salter said that even with all the pain medication, she is still in “horrible pain.” She said that she believes the medication is helpful, but in a limited capacity. She said that it dulls the pain “sometimes, somewhat” and that if she forgets her medication she is “in a world of pain.” She said that this can still occur even when she has taken her medication and she does not have an explanation for why this happens. She is usually comfortable when lying in bed, but some mornings she does wake up in significant pain, which she puts down to having had a restless night.[45]
[45] Transcript, Day 2, 45.
Mrs Salter was asked about her social activities. She said that the last time she visited a friend, Rosalie, on her own was in May 2022. She said that she would not do this again as the trip home was “dangerous” because she was in too much pain. Tara drove her to visit the same friend in November 2022. Mrs Salter said that the drive to Rosalie’s takes about 10 minutes and that she stayed there for about one hour and 15 minutes. She said that she was only able to achieve this by taking 30 mg of her oxazepam dose for the day prior to the trip.[46]
[46] Transcript, Day 2, 48.
Mrs Salter attended a family Christmas function at her son’s place last year. Tara drove her. She sat at the table while they ate, but otherwise she lay on the couch. She thought that she was there for around two hours in total.[47]
[47] Transcript, Day 2, 48-49.
It was put to Mrs Salter that the Respondent is of the view that she may benefit from psychology and physiotherapy. Mrs Salter said that based on her past experience she would not go near a physiotherapist and that she thinks she has the right to say no. In terms of psychology, she said that she thought she could probably do with some help and may benefit from speaking to the right person on the right day.[48]
[48] Transcript, Day 2, 45-47; 52-53.

It was put to Mrs Salter that the Respondent was of the view that her husband’s situation exacerbated her pain. Mrs Salter said that she did not believe that to be the case and said: “I’m not pathetic.” Mrs Salter was of the view that it was not her life circumstances that caused her to be in pain, but the pain itself.[49]
[49] Transcript, Day 2, 53.
It was put to Mrs Salter that the Respondent’s view is that her pain reduces her functionality, but that she can still do things. Mrs Salter said that she could drive to attend a doctor’s appointment two minutes away but that she would not drive to visit friends again.[50]
[50] Transcript, Day 2, 54.
The Tribunal noted that it has been provided with photographs of the mottled and blistered appearance of Mrs Salter’s back due to the use of heat packs. Mrs Salter confirms that her doctor is aware of that and has told her that it is “not good.” She did not think that the damage from the heat packs adds to her pain and felt that she derived benefit from the use of them. The Tribunal put to Mrs Salter that in 2019, Dr Slattery had suggested that she may be dependent on the pain medication and suffering from withdrawal. He thought that it may be worth investigating whether she was getting prescriptions early. Mrs Salter denied getting early prescriptions and said that she hates taking tablets. She denied ever taking more medication than had been prescribed.[51]
[51] Transcript. Day 2, 76.
Ms Tara Salter’s evidence
Ms Salter confirmed that she is 27 years old and has always lived at home with her parents. She works full-time as a teacher. The Tribunal asked her about what she needs to do in the care of her mother on a normal day when she is going to work. Ms Salter said that she is out of the house between around 7:30 AM and 4 to 4:30 PM each school day. Ms Salter said that she does not need to do much for her mother in the morning. Her mother does not eat breakfast but may make herself a chocolate Quik or coffee. Ms Salter said that her mother is shaky because of the pain and often spills things, which Ms Salter will clean up. After work, and on the weekends, Ms Salter does the house cleaning including vacuuming and changing Mrs Salter’s bed linen (which she said she has not done since January 2023 although the bed is in need of changing due to the oozing blisters on Mrs Salter’s back from the overuse of hot water bottles). The gardening was previously funded through her father’s NDIS plan, but Mrs Salter is now paying for it herself.[52]
[52] Transcript, Day 2, 60.
Ms Salter said that her mother used to be able to wipe down benches and mirrors, but no longer does so. Ms Salter says that she prepares the meals because if Mrs Salter prepares them, she shakes so badly and is in pain and cannot enjoy eating them. She used to be able to make herself curried egg, but no longer can do so. Ms Salter said that everything needs to be immediately accessible for her mother where she can reach it, such as spoons for the coffee being in the sink rather than in a drawer. Ms Salter said that her mother attempted to make cupcakes for Ms Salter’s birthday on 28 December 2022 and was unable to complete the activity due to an exacerbation of her pain. Her mother could previously pull the covers up on her bed once or twice a week but now is unable to do that at all. Her mother can fill and use a kettle which is boiled by Google. Ms Salter said that if she is filling the kettle, she must be careful not to overfill it as then her mother cannot manage it.[53]
[53] Transcript, Day 2, 56-58; 65; 67.
Ms Salter picks up the click and collect groceries. She also needs to pick up and unpack any deliveries that are made to the house. Ms Salter said that her mother no longer drives and that she needs to drive her mother to family events. They have discussed the need to sell Mrs Salter’s car as she is not using it.[54]
[54] Ibid.
Ms Salter said that if her siblings text her mother, she may need to text her siblings in reply. She said that sometimes she even needs to operate the remote control for the television because Mrs Salter is in too much pain to do so. Ms Salter said that Mrs Salter is deteriorating slowly, but daily. She said that her shaking has worsened.[55]
[55] Transcript, Day 2, 56-57.
Ms Salter said that her mother goes many days without showering as she will not permit Ms Salter to shower her. Ms Salter said that her mother “has the greatest integrity of anyone, and she - she doesn’t want to rely on help, but if the system isn’t designed to help her, I don’t know who it’s intended [for], because if I’m not doing what I’m doing for her, she’d be completely stuffed.”[56]
[56] Transcript, Day 2, 58.
She said that Ms Salter will only allow her to do the most basic care. She cuts Mrs Salter’s toenails every few weeks and may sometimes cut her fingernails. She puts Savlon on the burns on Mrs Salter’s back. Ms Salter said that she looks after “the setup” that Mrs Salter has on the couch. Ms Salter said that Mrs Salter needs a new couch as there is a “hole” in the couch where her hips go, but she has not been physically able to go out and purchase one.[57]
[57] Transcript, Day 2, 59-60.
Ms Salter said that people think her mother is functioning better than she actually is. Ms Salter said that she is unable to move out of home because she needs to care for Mrs Salter. She described Mrs Salter as vulnerable. Ms Salter said that she and her mother have a very good relationship, but that Mrs Salter does not want Ms Salter to be responsible for her needs. Ms Salter said that she was a physical support and driver for her father’s medical appointments, but she does not take Mrs Salter to any appointments as Mrs Salter does telephone appointments.[58]
[58] Transcript, Day 2, 59-61.
Ms Salter stated that her mother does not make nutritional meals for herself and is neglecting her own personal health because she puts Ms Salter’s needs above her own and because she cannot tolerate the pain of attending appointments.[59]
[59] Transcript, Day 2, 58-59.
Ms Salter confirmed that she had attended a retreat for school between 7:30 AM on a Wednesday morning and 1:00PM on the Friday. She said that the garbage bins were not collected on that occasion because Mrs Salter was unable to take them out for collection.[60]
[60] Transcript, Day 2, 62.
Ms Salter confirmed Mrs Salter’s evidence about Mrs Salter’s attendance at the aged care facility where her father resides. She said that the last doctor’s appointment she and Mrs Salter attended there was on 27 April 2022 with a neurologist. Mrs Salter said that her father has now been in transitional care for 14 months and they want to move him to a facility which is much further away from home which would mean that Mrs Salter would never be able to visit him. Ms Salter said that Mrs Salter has been on the phone and emailing to try and make Mr Salter’s arrangements final. Ms Salter confirmed that this has been a stressful experience for them all but described her mother as having “amazing psychological strength.” It was her opinion that stress does not change Mrs Salter’s pain, just makes it harder to deal with.[61]
[61] Ibid; 65.
Ms Salter said that she was aware that her mother attended physiotherapy through the pain clinic on one occasion, but that she understood that it worsened Mrs Salter’s pain and this has never resolved, so that Mrs Salter did not go back. She said that she was aware that her mother had also attended psychology through the pain clinic.[62]
[62] Transcript, Day 2, 63.
Ms Salter was asked about the care that her mother used to provide for her father before his admission into aged care. Ms Salter said that Mrs Salter would supervise and direct Mr Salter’s showering and personal care activities, mainly through verbal prompts. She would also do most of the clean-up from incontinence.[63]
[63] Transcript, Day 2, 64.
Ms Salter was unsure when her mother last left the house to visit friends, but said that it felt like more than a year. She confirmed Mrs Salter’s evidence about her attendance at the family Christmas gathering in 2022. Ms Salter said that it was her opinion that Mrs Salter requires a full-time carer and is missing out on having the supports “she deserves as a human.”[64]
[64] Transcript, Day 2, 68.
Expert evidence – Associate Professor Gordon Davies, Psychiatrist
A/Prof Davies confirmed that he did not have any alterations to make to his report of 11 August 2022, which concludes that Mrs Salter’s chronic pain is a permanent condition and Mrs Salter does not have a psychiatric disorder. A/Prof Davies stated that he is a legally qualified psychiatrist and has also done three years of psychology training.[65] He has many years of medico-legal experience and providing psychiatric treatment to patients with chronic pain.[66]
[65] Transcript, Day 1, 10-11.
[66] Transcript, Day 1, 17.
A/Prof Davies confirmed his opinion that Mrs Salter does not have a psychiatric diagnosis:
“…Her problems seemed to be most related to her physical disorder and her chronic pain, and as with anyone with sort of pain, they’re not comfortable or happy, but that doesn’t amount to a separate psychiatric illness, it’s a secondary effect of her other illness…”[67]
His opinion is that Mrs Salter’s pain is of physical origin, not psychological origin, but that all pain has a psychological component, as each individual may perceive it differently. A/Prof Davies acknowledged that anxiety and tension, and matters which are stressful to a person, may exacerbate their perception of pain.[68]
[67] Transcript, Day 1, 11.
[68] Transcript, Day 1, 11-12.
A/Prof Davies acknowledged that interdisciplinary management of pain is common due to the physical and psychological components of pain. He was aware that Dr Slattery had recommended psychological support for Mrs Salter. He said that his understanding of what Dr Slattery had been asking for was for the psychologist to help Mrs Salter to use techniques such as distraction or relaxation. These techniques are so Mrs Salter could try and minimise her perception of pain and to understand the mechanism of pain better, as that can help with management. He understood that Dr Slattery had also recommended physiotherapy and that Mrs Salter had steroidal injections, which had only provided short-term relief. His view was that it is not uncommon for steroid injections to only assist in the short term. He was aware that Mrs Salter had attended at least one session with a physiotherapist, but found that it exacerbated her pain.[69]
[69] Transcript, Day 1, 13.
A/Prof Davies confirmed that Mrs Salter had attended a couple of sessions with a psychologist through the pain clinic, but that she had not pursued psychology on an ongoing basis. He agreed that he was aware that when Mrs Salter was assessed in 2014 and early 2015 by the pain unit, first by a psychiatrist then by a psychologist, both of those persons noted that Ms Salter’s experience of pain was made worse when she had significant stress.[70]
[70] Ibid.
A/Prof Davies was asked how he had formed the view that Mrs Salter’s pain is a permanent condition. He said that his role was not to identify a specific physical cause of the pain, but that the other specialist reports show that Mrs Salter has a history of injury, with a ruptured disc and surgery in 2005:
“…Well, she’s had chronic back pain since 2005, so that’s what, going on for 18 years now. Her back pain has not been responsive to treatment, and really must be considered permanent…”
I mean she’s had lots of treatment of varying kinds and she’s still got the problem. When you see somebody who’s had a problem for 20 years unfortunately they are not going to get better…”
“…. We’re looking at 20 - nearly 20 years, she’s had lots of treatment, she’s seen lots of specialists, she’s been in the multidisciplinary program, she continues to have problems, the prognosis is for no change…” [71]
[71] Transcript, Day 1, 15-16.
The Respondent put to A/Prof Davies that Mrs Salter had an injury and surgery in 2005, and had some relief for a few years, but then the pain returned in 2010. About that time there were stressors in Ms Salter’s life, specifically the commencement of her husband’s decline. Further, in 2014, Mrs Salter was referred to the pain clinic but that there was limited engagement on behalf of Ms Salter with both the psychologist and the physiotherapist. He was asked if any of these considerations changed his view about the permanence of Mrs Salter’s chronic pain and that there has been no change in 20 years. A/Prof Davies said that in his view, “…the prospects of change are microscopic…”[72]
[72] Transcript, Day 1, 16.
A/Prof Davies explained that this view had been formed because of:
“…The duration and chronicity of the whole thing. Bear in mind that, you know, although she’s had surgery, one of the problems of surgery is that it doesn’t always relieve pain, in fact very commonly not. Psychological treatments can slightly modify things but given something that’s sort of as well established as this, change is most unlikely…”[73]
[73] Ibid.
A/Prof Davies said that in his experience, on the whole, long-term physiotherapy does not make a difference to this prognosis either, although some people do find that it helps.[74] On questioning by the Tribunal, he opined that even if Mrs Salter was to return to an interdisciplinary pain management program and engage fully, there could not be much change expected in her condition.[75]
[74] Ibid.
[75] Transcript, Day 1, 17.
A/Prof Davies was asked about the impact of any distress Mrs Salter may have felt about the cognitive decline of her husband, Ian, on her perception of pain. He acknowledged that it must have been a very distressing situation for Mrs Salter. A/Prof Davies explained that Mrs Salter did not appear immediately distressed by talking about the decline of her husband and his eventual early entry to aged care. He said that it was obviously not a pleasant subject, but Mrs Salter responded with reasonable and ordinary emotion.[76]
[76] Transcript, Day 1, 14.
On questioning by the Tribunal, A/Prof Davies said:
“…From the overall history that she gave, and I mean she’d had the surgery, as you said she’d been a little better, then things had recurred. Back pain is often like that and that’s pretty chronic, and there were no real reasons to say that, if you like, that it was simply that she got anxious that was sufficient to account for her pain. Neither was, I mean if you look at it in a manipulative sort of way, could you see that there was really any secondary advantage to her in having pain, in fact it made looking after her husband more difficult…”[77]
[77] Transcript, Day 1, 17.
A/Prof Davies did not think that it was valid to draw a connection between the increase in Mrs Salter’s pain and the deterioration of her husband. When asked if this is a valid connection to draw, his response was:
“I wouldn’t have thought so in terms of the chronicity of it, … I mean the question of permanence to me was an issue that perhaps should never have got to the Tribunal…”[78]
[78] Transcript, Day 1, 18.
Expert Evidence – Mr Gary Stretton, Occupational Therapist
Mr Stretton confirmed that he did not seek to change any aspects of his report of 22 August 2022. He confirmed that he is experienced in the functional assessment of people with chronic pain. He also confirmed his understanding that steroid injections did not give Mrs Salter any lasting benefit and that she did not persist with physiotherapy because it worsened her symptoms.[79]
[79] Transcript, Day 2, 71, 70.
Mr Stretton confirmed that his functional assessment found that Mrs Salter does not have the physical ability to lift anything heavier than two kilos, bend or stoop repetitively in order to complete heavier housework such as cleaning floors, the toilet and the bathroom and that she has similar limitations in relation to gardening and lawn care. She is unable to engage in repeated or sustained bending.[80]
[80] Transcript, Day 2, 70-71.
Mr Stretton stated that on the day of the assessment, Mrs Salter was unable to perform these activities “…without experiencing an obvious increase in pain. Both reported and observed by looking at body language. Breath holding, wincing, that sort of thing…”[81]
[81] Transcript, Day 2, 71.
Mr Stretton confirmed his view that Mrs Salter’s self-assessed level of difficulty under the WHODAS was consistent with her participation during other parts of the assessment. His opinion is that Mrs Salter has severe difficulty under the composite collection of domains set out in the WHODAS and presented as such.[82]
[82] Transcript, Day 2, 71.
The Tribunal put to Mr Stretton that he found Mrs Salter to mobilise relatively freely getting up and down from her couch and up and down from her bed and on and off the toilet. The Tribunal asked him how he came to a view that she has severe difficulty in the context of this. Mr Stretton explained that the activities that Mrs Salter was able to perform at his request, she was able to perform without any assistance and safely and independently, but that she was not able to maintain any position apart from lying down for longer than a couple of minutes at a time. The assessment was done in a few different stages, and although she was requested to move out of a reclined position several times, she was only able to do so for very short periods. Mr Stretton stated that this means that there are limitations placed on how long Mrs Salter could manage any particular activity:
…So she could certainly get in and out of the bed independently and on and off the toilet independently for those basic self-care tasks but I did note that she - I asked her specifically about things that might have taken a little bit longer, like say having a shower and washing hair, that sort of thing. So, you know, she’s able to manage those things up to sort of a few minutes at a time basically. But whenever we moved off the couch, then she was very eager to get back there and very obviously in considerable pain…[83]
[83] Transcript, Day 2, 71-72.
The Tribunal asked Mr Stretton if, in his professional opinion, it would have been prudent for Mrs Salter to have tried physiotherapy more than once. Mr Stretton said “not necessarily:”
I think when you are dealing with chronic pain people, you often see this. And particularly with Ms Salter’s condition and impairment. It’s not the same as say having weak muscles that you can go to physiotherapy and you might have sore muscles afterwards but then the pain dissipates and then you can go back and then you can work a bit harder. It’s a different type of condition. So, it’s certainly, in my experience, not uncommon for a person to give it a couple of goes and then to not go back. So, particularly if the after-effects were severe, which she reported that they were.[84]
[84] Transcript, Day 2, 72.
Mr Stretton said that he could understand why Mrs Salter did not return to physiotherapy, but that he could not predict whether she would be assisted at all if she were to return to it now.[85]
[85] Transcript, Day 2, 72.
The Tribunal asked Mr Stretton whether there are any home modifications which would assist Mrs Salter to manage day-to-day. Mr Stretton said that there are not. The home is on one level and is spacious and well set out. She would also not be assisted by a walker as she does not have problems with balance or falling. Mr Stretton said that Mrs Salter is getting around independently in short bursts for a few minutes at a time and he did not think that a walker would assist. Mr Stretton said that the tasks that Mrs Salter is doing are the ones that she has the capacity to do and ones that her daughter has been doing, or she has a commercial arrangement for, are the ones that she isn’t able to do. He did not believe that there was anything else that would help her. He also confirmed that in his experience, it is common for chronic pain patients to deteriorate over time, as Mrs Salter says that she is doing.[86]
[86] Transcript, Day 2, 72-73.
CONSIDERATION

The evidence before the Tribunal indicates that Mrs Salter has the following impairments: chronic pain; osteoarthritis; and Tarlov cysts. Mrs Salter’s position is that her condition is permanent and deteriorating. She submits that she is significantly impaired in a number of functional domains including social interaction, mobility, self-management and self-care.
Mrs Salter had a right-sided microdiscectomy at L5/S1 in 2005. She has been troubled by pain since that time and has had repeat consultations with her neurosurgeon, Professor Matthew McDonald, who in 2018 opined that there was nothing more that he could add to her management.[87]
[87] Exhibit 1 at Tab 7, letter of Professor Matthew McDonald dated 21 June 2018.
Mrs Salter also has a history of involvement with a multidisciplinary pain clinic between 2015 and 2019. During her treatment by the pain clinic she tried a number of different medications, a nerve block, at least one cortisone injection, TENS, psychology, and one session of physiotherapy. She was discharged from the pain clinic in 2019, with Dr Peter Slattery noting at that time that Mrs Salter was emphatically not interested in multidisciplinary pain management.[88]
[88] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 12 June 2019.
The expert opinion of A/Prof Davies, psychiatrist, is that Mrs Salter does not have any psychiatric or psychological impairment requiring treatment. His view is that Mrs Salter’s pain is of physical origin and that given its entrenched nature and resistance to treatment the “prospects for change are microscopic,” even if she were to fully re-engage with a multidisciplinary pain management program. He was of the view that her condition must be regarded as permanent, and that the question of permanence should perhaps not even be before the Tribunal.[89] Nonetheless, it is.
[89] Transcript, Day 1, 15-16.
A/Prof Davies was also of the opinion that the link that the Respondent is trying to draw between the cognitive decline of her husband and his admission to an aged care facility, and the increase in Mrs Salter’s pain over time, was not valid.[90]
[90] Transcript, Day 1, 17-18.
The expert opinion of Mr Gary Stretton, occupational therapist, is that Mrs Salter has chronic pain which causes her to experience severe difficulty performing the functional activities assessed as part of the WHODAS. He was of the view that her functional assessment and presentation were consistent with each other and that there are no other home modification or aids which would improve Mrs Salter’s function.[91]
[91] Transcript, Day 2, 71-72.
The Respondent argues that Mrs Salter’s physical impairments cannot be considered to be permanent because she has not fully engaged in all the components of multidisciplinary pain management and persisted with them, such as physiotherapy and more particularly psychology. The Respondent proposes that there is evidence of a strong link between Mrs Salter’s pain experience and stressful life experiences which has not been fully managed. It submits that the stress of Mr Salter’s decline coincided in time with a worsening of Mrs Salter’s pain and cannot be discounted as the cause of her deterioration. It submits that this link between physical pain and stress needs to be addressed with psychology. It is the Respondent’s submission that this avenue of pain management and treating the symptomatology of pain has not been explored. In closing, the Respondent acknowledged that is “not to say that psychological sessions would necessarily be a miracle cure … but it’s certainly not a line of inquiry that Mrs Salter has pursued despite the advice.” [92]
[92] Transcript. Day 2, 79.
Further, the Respondent is of the view that no physical cause for Mrs Salter’s pain has been identified. While Mrs Salter identifies that cause of her pain as Tarlov’s cysts, this is not supported by the medical evidence. Nor does the medical evidence establish that any treatment or removal of the cysts would make any difference to Mrs Salter’s pain or functional capacity. The Respondent also submits that Mrs Salter has only engaged in a limited way with the treatments offered to her and has been resistant to pursuing treatments which may offer her a therapeutic benefit. The Respondent submitted that Mrs Salter’s evidence about interventions such as physiotherapy having permanently reduced her functional capacity should be received with caution, although acknowledging that Mrs Salter may genuinely believe this to be the case.[93]
[93] Transcript. Day 2, 80.
Further, the Respondent noted that Mrs Salter’s evidence is that she takes the full dosage of each medication prescribed to her every day, whether she needs that much or not and even if it does not seem to help. She disavowed the knowledge that she was only to take that much medication if she needed to. Her view appeared to be that she always needs to take that much medication regardless of what is happening. The Respondent was of the view that Mrs Salter may not be in such a poor state as she reports each day when this is viewed objectively, and that she may not be receiving the best therapeutic outcome from her current regime.[94] The Respondent submitted that the knowledge Mrs Salter says that she has gained from Facebook is no substitute for relevant expert advice and consultation, and the evidence of qualified experts is that there are things that need to be tried to see if they can give any relief.[95]
[94] Transcript. Day 2, 80-81.
[95] Transcript, Day 2, 81-82.
The Respondent acknowledged that despite its contention that Mrs Salter’s pain is affected by her mental state, A/Prof Davies has found that that there is no psychological or psychiatric diagnosis and therefore no treatment flowing from such diagnosis that he can recommend. The Respondent submitted that this does not mean that psychological treatment is not needed or should not be pursued.[96] The Respondent submitted that A/Prof Davies has formed a view of the permanence of Mrs Salter’s chronic pain based on its longevity, as opposed to any other medical basis, and he did not identify a physical cause.[97]
[96] Transcript, Day 2, 78.
[97] Ibid.
In relation to the evidence of Mr Stretton, the Respondent acknowledged that there was nothing that Mr Stretton could recommend in terms of assistive technology or modifications for pain management. The Respondent submitted that Mr Stretton’s evidence must been seen in the context of the limitations of his professional expertise, which is to look at functional assessment, not to manage pain or provide care to a person with chronic pain.[98]
[98] Transcript, Day 2, 81.
The Respondent said that, leaving aside the WHODAS assessment, the evidence is that Mrs Salter, across the domains, is largely able to manage by accommodating according to the limitations she has. That is not sufficient to meet the test of a substantial reduced functional capacity. The evidence is not that bending is impossible, but it has limitations and those limitations, properly described, are repeated bending or sustained bending. There is some limited functional capacity but it is not sufficient to meet the relevant test.[99]
[99] Transcript, Day 2, 82-83.
The Tribunal put to the Respondent that it acknowledged that none of the medical evidence indicates that whatever hypothesized or proposed treatment exists is going to be curative. The Tribunal asked why that did not mean that condition is an enduring condition, which may therefore potentially be permanent. The Respondent acknowledged that it could see the “conundrum” and clarified that as there had been no definite physical cause identified for the pain and no firm diagnosis of chronic pain disorder, it was of the view that further investigations were still required.[100]
[100] Transcript, Day 2, 83-84.
DISABILITY – S 24(1)(a) NDIS Act
The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. In Mulligan,[101] the Federal Court (Mortimer J) pointed out that while the NDIS Act refers frequently both to “disability”, without defining it, and to “impairment”, without defining it,[102] “the undefined statutory phrase ‘people with a disability’ is not to be construed as limited to people who meet the access criteria in Ch3 of the Act. The access criteria have a number of components and thresholds.”[103] The Court pointed out in Mulligan, at [56]:
No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
[101] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’).
[102] Ibid [16].
[103] Ibid [18].
In this case, there is no dispute that Mrs Salter meets the age and residence requirements. The question is whether she meets the disability requirements under s 24, or the early intervention requirements under s 25, of the NDIS Act.
The Tribunal considered the Respondent’s submission and was of the view that the Respondent’s arguments were not assisted by the expert witnesses. The Respondent continued to labour a link between the deterioration in Mrs Salter’s pain and her husband’s cognitive decline, despite the expert evidence from A/Prof Davies dismissing the validity of such a theory. It also argued that, aside from the WHODAS, Mrs Salter does not display a significant functional impairment. As the Tribunal has before it a WHODAS, which is a valid measure of functional capacity, and a functional capacity assessment made by an expert who is qualified and experienced in the making of such assessments it must give these assessments due weight. There have been no issues raised about the methodology or adequacy of the assessment, although the Tribunal agrees with the Respondent that Mr Stretton’s assessment must be viewed in the context of his experience.
The Tribunal also disagrees with the proposition put by the Respondent that there has been no physical cause identified for Mrs Salter’s pain. While the Tribunal agrees that the medical evidence does not establish that the Tarlov’s cysts are the cause of Mrs Salter’s pain, despite her belief that they are the true cause of her disability, the Tribunal is satisfied that there is evidence that Mrs Salter has physical impairments which could account for her pain. Multiple CT scans show multilevel facet joint arthropathy, narrowing of the spinal canal and degenerative changes in her cervical, thoracic and lumbar spine with evidence of possible nerve root irritation. She has also had spinal surgery at L5/S1. Professor McDonald says that “understandably she has some issues with chronic pain.”[104] Dr Slattery says that there is likely “a significant neuropathic component” to Mrs Salter’s pain.[105]
[104] Exhibit 1 at Tab 7, letter of Professor Matthew McDonald dated 21 June 2018.
[105] Exhibit 1 at Tab 7, letter of Dr Peter Slattery dated 1 June 2016.
On consideration of the evidence, the Tribunal is satisfied that Mrs Salter has disabilities that meets the requirement of s 24(1)(a) of the NDIS Act in relation to a physical impairment from her back condition, being osteoarthritis and chronic pain. The evidence before the Tribunal does not establish that her Tarlov’s cysts cause her disability, although the possibility cannot be discounted. The medical evidence before the Tribunal is that Tarlov’s cysts are a normal anatomical variation and there is no indication that they cause Mrs Salter disability.
The next question is whether the impairments are, or are likely to be permanent, as required by s 24(1)(b) of the NDIS Act.
PERMANENCE – S 24(1)(b) NDIS Act
In Mulligan,[106] the Federal Court referred to requirements of the assessment under s 24(1) of the NDIS Act in this way, at [55]:
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition and of the effects of that condition through not only the evidence of an applicant but also medical and clinical evidence.
[106] Mulligan.
In relation to permanence, rule 5.4 of the NDIS Access Rules provides that an impairment is permanent or is likely to be permanent only if there are no known, available, evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. Rule 5.7 of the NDIS Access Rules refers to impairments of a degenerative nature – they are or are likely to be permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Tribunal is satisfied that the radiological evidence establishes that Mrs Salter’s osteoarthritis is a permanent condition. It is a degenerative condition and there is no indication that it can be improved. The real issue is whether Mrs Salter’s chronic pain should be considered a permanent condition, when the Respondent’s position is that this pain has not yet been fully investigated or treated.
A/Prof Davies’ opinion is that it does not now matter whether or not Mrs Salter’s chronic pain is subject to further investigation or treatment – there is no prospect for any significant change. He has formed this view due to the entrenched and refractory nature of the pain.
Dr Slattery said in 2016 that he did not think that there were any other interventional options for pain management.[107] This does not discount non-interventional options, with which Mrs Salter did continue to some degree before being discharged from the pain management program in 2019 on the basis that she was not interested in interdisciplinary pain management.
[107] Exhibit 1, Tab 7, Letter of Dr Peter Slattery dated 30 November 2016.
The Tribunal agrees that Mrs Salter did not fully engage in physiotherapy, psychology and mindfulness, but notes her evidence was that this was because she was unable to do so. The Respondent acknowledges that any further therapies offered to Mrs Salter will not be a “miracle cure.” The Tribunal has no evidence to suggest that any further treatment may remedy Mrs Salter’s impairment of chronic pain, even if it does give her some small relief.
A/Prof Davies is of the view that any further treatment will not make any significant improvement to Mrs Salter’s condition and the issue of permanence should not even be before the Tribunal. The Tribunal accepts this evidence concerning the permanence of the impairment. A/Prof Davies’ evidence and opinion about permanence stands against a background of some two decades, during which Mrs Salter sustained injuries and received medical and allied health treatment for problems with her back. In applying rule 5.4 of the NDIS Access Rules, the Tribunal is satisfied that Mrs Salter’s physical impairment of chronic back pain is permanent. The Tribunal finds that the criterion in s 24(1)(b) of the NDIS Act is met in regard to physical impairment caused by Mrs Salter’s chronic pain.
FUNCTIONAL CAPACITY – Section 24(1)(c) NDIS Act
Section 24(1)(c) of the NDIS Act requires an analysis of whether the impairments result in substantially reduced functional capacity to undertake one or more of the activities specified in the subsection. Those activities are communication, social interaction, learning, mobility, self-care and self-management.
Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Mrs Salter’s impairments. The legislation requires:
… a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.[108]
[108] Mulligan [55].
In Nika & National Disability Insurance Agency,[109] the Tribunal (Deputy President Meagher) referred to s 24(1)(c), noting that:
… the test is not whether the applicant could do more with respect to a particular activity. The test is whether the applicant has substantially reduced functional capacity to undertake the activity.[110]
[109] (2021) AATA 2127.
[110] Ibid [230].
Under rule 5.8 of the NDIS Access Rules, the decision-maker must assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c), then the deeming effect of r 5.8 will apply, namely that the impairment results in substantially reduced functional capacity to undertake one or more of the relevant activities. These NDIS Access Rules require consideration of a person’s capacity to participate in the activity without assistive technology, equipment other than commonly used items or home modifications; whether the person usually requires assistance from someone else to undertake the activity; or whether the person is unable to participate in the activity even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal has regard to the Operational Guidelines at ‘Does your impairment substantially reduce your functional capacity?’[111]
[111] Operational Guidelines, ‘Does your impairment substantially reduce your functional capacity?’, 30 June 2022 <
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
·Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
·Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
·Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
Functional Capacity Evidence
The Agency arranged for an independent assessment of Mrs Salter to be undertaken by an occupational therapist, Mr Gary Stretton. He attended Mrs Salter’s home for a three-hour assessment on 14 July 2022, and wrote a report dated 22 August 2022 about that assessment and his findings. The briefing instructions and report[112] were admitted into evidence at the hearing and Mr Stretton gave evidence. Before the assessment, he was provided with various background reports and material, which were listed in his report. He noted background information about Mrs Salter, which included the onset of lower back symptoms and a microdiscectomy in 2005; several steroid injections with short term relief; and physiotherapy and chiropractic, which she reported made her symptoms worse. He noted that she had previously been under the care of the Flinders Pain Management Unit, but now only sees her GP.
[112] Exhibit 1, Tab 14.

Mr Stretton’s report notes that the interview component of the assessment was conducted with Mrs Salter lying on the couch, “the one position she finds comfortable enough to remain in for prolonged periods.”[113] Mr Stretton described Mrs Salter as pleasant and co-operative and states that she attempted all tasks requested of her without hesitation. He says that she was candid and appeared genuine in her responses to questions asked. He noted that she was anxious about the assessment and became teary at various times when talking about the limitations her impairments have placed on her ability to function.[114]
[113] Ibid, 6.
[114] Ibid.
Mr Stretton says that prior to Mr Salter’s diagnosis of fronto-temporal dementia and placement into residential care in December 2021, he had been responsible for much of the domestic care such as cleaning bathrooms and floors and lawn and garden maintenance due to Ms Salter’s limitations.[115] Mr Stretton states that Mrs Salter does not participate in any leisure activities. He said that she rarely goes out socially, and that the most recent events she attended were a musical in 2012 and a wedding in 2016, when she left at the beginning of the reception.[116]
[115] Ibid, 9.
[116] Ibid.
Mr Stretton states that he observed the activities and actions of functional mobility (e.g. chair transfers, stair climbing, mobilising indoors and outdoors) and activities of daily living (e.g. drinking, writing, reading, communicating). Some tasks were not observed (e.g. travelling in a car); however, were reported based on Ms Salter’s description, corroborated by information provided and cross referenced with clinical observations, standardised assessment findings, and assumptions made regarding her diagnosed medical and psychiatric conditions.[117]
[117] Ibid, 10.
Mr Stretton used the standardised assessment tools of WHODAS (World Health Organisation Disability Assessment Schedule 2.0) and Modified Caregiver Strain Index to assess Mrs Salter’s function. Mr Stretton advises in his report that:
The “simple scoring” method was used, whereby the scores assigned to each of the items – “none” (1), “mild” (2) “moderate” (3), “severe” (4) and “extreme” (5) – are summed. In classical psychometric analysis, the WHODAS 2.0 structure has been shown to be unidimensional and to have high internal consistency. As a result, the simple sum of the scores of the items across all domains constitutes a statistic that is sufficient to describe the degree of functional limitations.[118]
[118] Exhibit 1, Tab 14, 10.
Mr Stretton states that Ms Salter’s responses provided a score of 48.75%, with higher percentages indicating a higher level of self-perceived functional impairment. He states that Ms Salter’s self-assessed level of difficulty with daily activities using the WHODAS was consistent with her reported activity and participation during other parts of the assessment. The scores across domains were as follows:[119]
[119] Ibid, 11.

Understanding and communicating 12.50% (mild difficulty)

Getting around 85% (extreme difficulty)

Self-care 43.75% (moderate difficulty)

Getting along with people 70% (severe difficulty)

Life activities 96.88% (extreme difficulty)

Participation in society 96.88% (extreme difficulty)

Total 67.50% (severe difficulty)

Mr Stretton reports that Tara Salter scored a total of 19 out of a possible 26 on the Modified Caregiver Strain Index. He states that this is indicative of a high level of caregiver strain, or a high burden.[120]
[120] Ibid, 12.
Mr Stretton produced a table of Mrs Salter’s functional capacity, which it is convenient for the Tribunal to reproduce here:[121]
[121] Ibid, 12-17.

FUNCTIONAL DOMAINS Clinical observation/assessment Report of Ms Salter

b. Mobility

- Moving around the house

- Leaving the house

- Moving about in the community, shopping centres or recreational activities

- Using public transport or a motor vehicle

- Getting in and out of bed or a chair

- Mobility difficulties as a result of side-effects of treatment.

- Observed to mobilise inside the home safely and independently without the use of a walking aid. Maximum time observed at one time in a standing position was 5 minutes.

- Observed to transfer onto/off bed safely and independently.

- Observed to transfer on and off toilet independently.

- Observed to transfer in and out of couch safely and independently, albeit slowly and with some difficulty.

- Observed ability to access all areas inside her home.

- Attempted forward bend at my request and managed hands to mid-thigh level on one occasion.

- Completed one quarter squat with considerable difficulty and poor technique.

- Unable to balance on one leg or walk on heels and toes.

- Displayed full functional range of motion in upper limbs.

- Ms Salter reported she is able to mobilise independently indoors without the use of a walking aid.

- She advised she is able to walk for 20-30 minutes at the local shopping centre if she is accompanied by her daughter and takes frequent rests. She does this only seldom and when absolutely necessary and will require heat applied by a hot water bottle for relief on returning home.

- Ms Salter advised she experiences increased pain in her mid and lower back in sitting, standing and walking from downward pressure on her upright spine. Her preferred position is side lying with supporting pillows.

- Ms Salter has a driver’s licence and is able to drive short distances independently to drive to the supermarket to collect pre-ordered groceries or to see her general practitioner. If she needs to take Oxazepam she does not drive and must be driven by Tara.

- She does not use public transport.

c. Communication

- Communicating needs and wants (i.e., gestures, speech, or context appropriate to age).

- Following instructions and conversations

- Understanding others

- Understanding directions.

- Understanding written instructions

- Writing instructions

-Observed to understand questions and respond appropriately.

- Observed to communicate needs and wants, such as her desire for NDIS support.

- Observed to follow instructions and conversations, including completing assessment items and responding to questions appropriately.

- Observed to understand written instructions, as demonstrated by completion of the WHODAS 2.0, which was completed with the assistance of Tara, who asked questions and circled the correct answers.

- Ms Salter reported no issues with expressive or receptive communication.

- She reported ability to use a computer and communicate with people on social media.

d. Social Interaction

- Making and keeping friends and relationships

- Interacting with the community at any level

- Behaving within limits accepted by others

- Coping with feelings and emotions in a social context

- How/why behaviour does not occur within limits accepted by others and how often this occurs

- Having a sense of purpose in life, making connections in the community or volunteering.

- Observed ability to engage in reciprocal social conversation. Appeared extremely nervous at the commencement of the assessment but

became more comfortable as it progressed.

- Interacted appropriately with OT and daughter.

- Observed ability to maintain appropriate eye contact throughout the assessment.

- Observed to answer questions and appropriately.

- Observed behaviour within socially acceptable limits.

- Ms Salter stated she avoids social situations, as she is unable to manage the physical demands of remaining upright.

- She reported she is sometimes short-tempered and agitated when she is in pain but does not display inappropriate or offensive behaviour.

- She stated she has maintained contact with a few friends, with whom she socialises every 6-8 weeks. This may involve driving to see a friend who has multiple sclerosis or hosting a friend to her home. She does not attend any other social functions, unless it is with immediate family and usually only on special occasions.

- She does not typically attend her son or daughter’s house (5 and 8 minutes’ drive away), preferring that they visit her in her own home where she can feel more comfortable in a lying position.

e. Learning

- Understanding

- Remembering

- Learning new information

- Practicing new skills

- Concentrating.

- Demonstrated ability to learn assessment rating skill system and apply it to questions, e.g. when completing WHODAS.

- Demonstrated capacity to sustain concentration for 3-hour assessment.

-Ms Salter did not report any issues with learning. She did refer to difficulty concentrating at times when dealing with a pain response after physical activity.

f. Self-management

- Daily activities such as cooking or laundry

- Handling and solving problems which arise

- Managing money and budgeting

- Making decisions

- Keeping safe in home environment

- Taking responsibility and behaving responsibly

- Connecting to services

- Organising her life – plan and make decisions and take responsibility for herself (daily tasks, managing decisions, problem solving and managing finances.

- Insight into decision making capacity.

- Observed to make a drink for herself.

- Observed to fill a water bottle using boiling water, poured from the kettle.

-The sink was clean and empty.

- Ms Salter displayed the physical abilities such as strength, range of motion and motor control to perform meal preparation, light dusting and tidying between waist and shoulder level, if pacing techniques are used.

- She was unable to bend sufficiently to access low cupboards without difficulty and is unable to maintain a stooped posture.

- She was unable to squat or kneel.

- She does not possess the physical abilities to lift more than 2kg, bend or stoop repetitively in order to complete heavier housework such as cleaning floors, toilet, and bathroom.

- Ms Salter stated she is able to make her own breakfast and lunch and heat a pre-prepared meal for dinner.

-She stated she enjoys cooking and when she feels physically able she and Tara will make a large amount of meals to be frozen, such as bolognaise, butter chicken and satay beef. In order to achieve this she needs assistance to obtain some appliances (such as a slow cooker) from the cupboard, lift pots and pans that contain water or food and to open jars. She is able to chop food and monitor/stir for short periods and takes breaks.

- There is a dishwasher, which Tara routinely empties due to the repetitive bending required.

- Ms Salter reported she orders her groceries online and collects them from the supermarket via a ‘direct to boot’ arrangement where shop assistants place the grocery bags in the boot of her car. She then transports the groceries home and will make several trips from the boot to the kitchen with small items she is able to manage. Heavier items (above 2kg) may remain in the boot until Tara removes them when she returns home.

- Ms Salter reported she washes her own clothes using the top loader washing machine and hangs them on a clothes airer.

- She is unable to change her bed linen and this is completed by Tara.

- Ms Salter reported she has a commercial arrangement for lawn and garden care.

- Ms Salter reported Tara completes the bulk of the housework, including cleaning bathrooms and floors, mopping and vacuuming.

- Ms Salter will wipe benches and her own bathroom basin, as she can complete this in a short timeframe with no necessity to reach or bend.

- Ms Salter reported she is able to manage all her own financial affairs and pays her bills online.

g. Self care

- Showering/bathing

- Dressing

- Eating

- Toileting

- Maintaining physical health

- Managing medication

- Ms Salter was observed to possess the physical capacity and range of motion to attend to the majority of her own personal care tasks independently.

- Ms Salter reported independence in most self-care activities. She receives assistance from Tara for toenail care due to the bending involved.

- She stated she showers on average five days per week but if pain is particularly bad she will avoid it. She showers in a standing position and completes it as quickly as possible due to a significantly reduced tolerance to standing. She washes her hair once per week.

- She had engaged a mobile hairdresser, as she was unable to tolerate sitting upright in a salon but had not received a haircut since September 2021.

- She is able to dress and toilet herself without assistance.

- She is able to manage her own medication.

- Ms Salter advised that she has emphysema and a bladder issue that she is aware of. She admits that she does not stay up to date with her health checks ,due to the physical demands of attending appointments and investigations in person.

- She attends most GP appointments by telehealth, with in-person appointments limited to approximately three times per year.

As noted above, the six functional domains (in which a person must establish a significant functional impairment in at least one) are communication, social interaction, learning, mobility, self-care and self-management. There is no suggestion that Mrs Salter has a significant functional impairment in communication or learning, leaving only social interaction, mobility, self-management and self-care. The requirements of section 24(1)(c)(i) and 24(1)(c)(iii) the NDIS Act are not satisfied in relation to communication and learning.
Social Interaction
The Operational Guidelines[122] focuses on whether or not a person has the skills to engage in social interaction and how they behave when they do so, rather than any opportunity for social interaction which may be present in their lives, or any barriers which may make accessing social interaction more difficult for the person. The Tribunal accepts that Mrs Salter’s pain does create a barrier which makes it more difficult for her to engage in social interaction, but there is minimal evidence to suggest that it affects her skills to do so. While she has difficulty maintaining an upright posture, driving or travelling in a vehicle, and feels some embarrassment about being in a reclined posture at home with visitors, her social and communication skills are not impaired by her disabilities.
[122] Operational Guidelines, ‘Does your impairment substantially reduce your functional capacity?’, 30 June 2022 <
In Kilgallin and National Disability Insurance Agency,[123] the Tribunal was also faced with the circumstances of an applicant who had significantly reduced their social interactions as a result of their disability. In that case, the Tribunal found that the applicant may well have reduced psychosocial functioning in undertaking such activities, but the skills required for social interaction were not significantly affected. The Tribunal finds this to be Mrs Salter’s situation - she engages in social interactions much less frequently than in the past and when she does so she may be affected by pain. Further, her pain may be aggravated after engaging in social interaction. Nonetheless, the Tribunal could not form a view that Mrs Salter has a substantially reduced functional capacity to undertake the activity of social interaction outlined in section 24(1)(c)(ii).
Mobility
[123] [2017] AATA 186.
The Operational Guideline provides a definition of mobility:
·Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.[124]
[124] Operational Guidelines, ‘Does your impairment substantially reduce your functional capacity?’, 30 June 2022 <>
The concept of mobility in the NDIS Act refers to how a person moves around their home and uses their arms and legs to undertake the ordinary activities of daily living. It also refers to what a person physically can do, as opposed to what they actually in fact do. Doing activities more slowly than a normal person or in a modified way does not mean that a person has a reduced functional capacity. In the case where a person has significant pain, it is entirely likely that they limit their movements to within a range that does not produce pain, or at least minimises it, even though they would be physically capable of doing more if they were able to tolerate an increase in their symptoms. This imports some degree of complication to an assessment of Mrs Salter’s functional impairment in mobility.
On the evidence of Mrs Salter, her treating professionals and Mr Stretton, Mrs Salter is able to mobilise around her home. She does not use a walking stick or any other form of mobility aid. She was observed to access all areas within her home. She does modify her activity to try and control her symptoms and can only stand for about five minutes. She can transfer on and off her bed and lounge; and on and off the toilet independently and demonstrated the full functional range of movement in her upper limbs. She can bend to at least mid-thigh level but appears to be unable to squat. She is able to leave the house and spend some time mobilising in the community with the support of Tara, but does not do so independently. She requires regular rest breaks when moving around.
Mr Stretton states that Mrs Salter is unable to lift more than two kilograms and the problems that she has with sustained or repetitive bending mean that she is unable to mop, vacuum, clean the bathroom and attend to the gardening. These chores are done by Tara or paid help. Mrs Salter is only able to engage in lighter activities. She needs assistance from Tara with cooking due to accessing pots and pans and the weight of objects. She appears to need objects placed within her reach at a level above mid-thigh and below shoulder height. Mr Stretton reported that Mrs Salter independently manages her laundry and hangs small items on a clothes airer.
Mrs Salter is limited in her ability to access community facilities due to her pain and her ability to do so for any purpose is decreasing. She leaves her home infrequently. She gets her shopping and medication delivered although she was in the past able to order groceries online and drive the short distance to pick them up, making several trips from the car to the house to bring them inside. She has reduced her few social activities significantly as she is unable to cope with the rigours of sitting upright for more than a short time. She has been unable to leave the home for long enough to choose a new lounge suite. Mrs Salter was unable to mobilise to put the bins out when Tara spent a couple of nights away. She no longer drives more than a few times per year. Mrs Salter stated that she has refused to have further medical tests or follow-up because she cannot tolerate being transported to, and waiting for, treatment as the pain is not manageable.
In Madelaine and National Disability Insurance Agency,[125] the Tribunal considered the threshold for functional capacity in mobility and decided that a person has functional capacity in mobility if they can “move about their home, get in and out of the bed or chair, and mobilise in the community.”[126] It acknowledged that the threshold is a modest one, which only involves short distances around a person’s home and around community facilities once they are transported there. Further, it came to the view that “significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park.”[127]
[125] [2020] AATA 4025.
[126] Ibid [104].
[127] Ibid [105].

In her statement of 10 December 2022,[128] Mrs Salter commented that her gardens are neat and tidy due to paid support. She states:
…I was fastidious with housekeeping. I always had home cooked meals on the table at 6pm. I enjoyed walking along the beach, or simply around the neighbourhood. I loved cooking and baking. I helped friends and family in so many capacities. I would have loved to become a foster parent had life turned out differently for me.
The past 17 years have seen me lose myself little by little as I deteriorated. I had looked forward to living life with my adult children and spoiling my grandchildren endlessly. That has been impacted immeasurably by my disability. All things that used to make me who I was and who I wanted to be are no longer possible. I am a shell of who I was. My disability has dramatically changed me…[129]
[128] Exhibit 1, Tab 10.
[129] Exhibit 1, Tab 10, 1.
Mrs Salter notes that although she attended her nephew’s wedding in 2016, she had to be taken home before the reception started because she was vomiting from the pain.[130] She notes that she is unable to participate in leisure activities and is in receipt of disability support pension. She states that she was in increased pain for several days after Mr Stretton’s assessment.[131] She states that Tara needs to get items of out the freezer for her and that she cannot empty the bins or the dishwasher. She says that she is unable to access “80-90% of items in the kitchen.”[132]
[130] Ibid 8.
[131] Ibid.
[132] Ibid 10.
In Jourifan & National Disability Insurance Agency,[133] the Tribunal (Senior Member Dr Bygrave) found that the applicant did not have a substantially reduced functional capacity with mobility, having regard to evidence that he was able to walk 700 metres to 800 metres daily without using a walking stick, driving for 10 minutes, travelling alone by bus, assisting his wife with grocery shopping and carrying up to 3 kilograms. Mrs Salter is not able to do any of these activities.
[133] [2020] AATA 1883.
In MHZQ & National Disability Insurance Agency,[134] the Tribunal (Senior Member Dr Bygrave) accepted that the applicant’s bilateral knee condition caused significant difficulties in her capacity to mobilise. However, the Tribunal was not satisfied that the applicant’s bilateral knee condition resulted in a substantial reduction in functional capacity to mobilise, as she did not use mobility aids and she had the capacity to walk without aids for 50 metres if she loses further weight. The Tribunal noted the decision in Holmes & National Disability Insurance Agency[135] (per Professor McCallum), which found that the capacity to walk 50 metres, then needing to rest, then continuing to walk after a break, does “not amount to a substantially reduced capacity in… mobility.” On most occasions, Mrs Salter needs the support of one person to leave the house. While she may sometimes walk 50 metres, she does not do so independently.
[134] [2019] AATA 810.
[135] [2017] AATA 2750 [76].
The Operational Guidelines does not specify ability to walk a particular distance as a definition of the level of mobility. However, as Deputy President Humphries pointed out in Madelaine & National Disability Insurance Agency[136]
… It seems reasonable to suggest that a person who can travel 50 metres by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ…
[136] [2020] AATA 4025 [106].
The Tribunal is satisfied that Mrs Salter does have impaired mobility as a consequence of her disability. This finding is consistent with the medical evidence and the functional assessment. While she is able to mobilise within her home to do what she needs to do, she still has limitations, such as being unable to walk far enough carrying weight to put the bins out; repetitive bending and reaching; and remaining in a position other than lying on her right side for any length of time. She is largely unable to mobilise for the purpose of accessing community facilities without the assistance of Tara to drive and support her. Her capacity has declined over time. She is unable to visit her husband in aged care even though he is only a few minutes away and is only to maintain her social contacts with family and friends in the most minimal way due to her impairments of mobility, most particularly the ability to sit. Although a stationary position, an ability to sit is an integral component of mobility, particularly for community access. The Tribunal considered whether the impairment of function Mrs Salter displays on leaving the home, combined with her limitations in undertaking the activities of daily living, amount to a substantial impairment of mobility and was satisfied on the evidence before it, that Mrs Salter has a substantial impairment of mobility as required by section 24(1)(c)(iv) of the NDIS Act.
The test set out in Mulligan establishes that the Tribunal must be positively satisfied that the requirements of the NDIS Act are met in relation to a disability before access to the scheme can be granted. The Tribunal has reached the requisite level of positive satisfaction in relation to Mrs Salter’s substantial functional impairment of mobility. Mrs Salter meets the requirements for access to the scheme under section 24(1)(c) of the NDIS Act.
As the Tribunal has found that Mrs Salter has a substantial impairment of mobility, it did not need to consider the other criteria in detail. The Tribunal noted that Mrs Salter also has impairments of self-care, but was of the view that these stem from Mrs Salter’s mobility impairment.
SUMMARY – Section 24(1)(c) NDIS Act
The Tribunal has considered the factors set out in rule 5.8 of the NDIS Access Rules and is satisfied that Mrs Salter does demonstrate substantially reduced functional capacity. Mrs Salter’s circumstances indicate that she has an inability to participate effectively or completely in relevant activities without requiring the assistance of at least one person. Prior to the admission of her husband to aged care, she received this support through his NDIS package. While provided for his benefit, it also met her needs.
SOCIAL OR ECONOMIC PARTICIPATION – Section 24(1)(d) NDIS Act
Mrs Salter’s last employment was many years ago. She has been in receipt of the disability support pension for several years. She is unlikely ever again to engage in gainful employment, for which she is reasonably qualified. This incapacity is predominantly a result of her osteoarthritis and chronic pain.
The Operational Guideline provides in part that this criteria is satisfied if a person’s social or work life is affected in some way by their disability:
…We look at your ability to do things like:
·         find and keep a job, or start your own business
·         study
·         spend and save money
·         play sport
·         go to the movies
·         volunteer
·         travel.
It doesn’t matter how much your ability to work, study or socialise is affected by your impairment. It only needs to affect your social or work life in some way for you to meet the criteria.[137]
[137] Operational Guidelines, ‘Does your impairment affect your social, work or study life,’ 30 June 2022 <>
The Tribunal finds that Mrs Salter meets the requirements of s 24(1)(d) of the NDIS Act, as her permanent impairments affect her capacity for social and economic participation.
SUPPORT UNDER THE NDIS FOR THE PERSON’S LIFETIME – Section 24(1)(e) NDIS Act
In order to become a participant in the NDIS, an applicant must meet each of the paragraphs in s 24(1) of the NDIS Act. Mrs Salter has a permanent impairment which is deteriorating over time. Her functional capacity is reducing. As Mrs Salter does meet the requirements of s 24(1)(c) of the NDIS Act to become a participant in the NDIS and has a permanent condition, the Tribunal is satisfied that she meets the criteria in s 24(1)(e) of the NDIS Act.
As the Tribunal has found that Mrs Salter meets the disability requirements for entry as a participant in the NDIS, it did not proceed to consider the early intervention requirements.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that Mrs Salter meets the disability requirements for access to the NDIS as set out in section 24 of the NDIS Act.

I certify that the preceding 157 (one-hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski

...............................[SGD].....................................
Associate
Dated: 19 May 2023

Date of hearing(s): 10 and 20 March 2023

Applicant:
Ms V Salter

Representative for the Respondent: Ms A Douglas-Baker

[2023] AATA 1273

19 May 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Natural Justice

Understanding and communicating	12.50% (mild difficulty)
Getting around	85% (extreme difficulty)
Self-care	43.75% (moderate difficulty)
Getting along with people	70% (severe difficulty)
Life activities	96.88% (extreme difficulty)
Participation in society	96.88% (extreme difficulty)
Total	67.50% (severe difficulty)

Date of hearing(s):	10 and 20 March 2023
Applicant:	Ms V Salter
Representative for the Respondent:	Ms A Douglas-Baker