Sheldon and National Disability Insurance Agency

[2018] AATA 2560

Sheldon and National Disability Insurance Agency [2018] AATA 2560 (30 July 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2017/4340

Re:Richard Sheldon

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:30 July 2018

Place:Sydney

The decision under review is affirmed.

..........................[sgd]..............................................

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – whether the applicant meets the disability requirements set out in the NDIS Act to participate in the NDIS – access criteria considered – objects and principles of the Act considered – potential risks of surgery weighed against expert medical evidence – applicant has not undertaken any recent medical review about alternative treatments – further treatment may be available for applicant’s impairment – Tribunal not satisfied impairment is permanent – decision affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) – ss 3, 4, 21, 22, 23, 24, 25, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) – paragraph 5

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Mulligan and NDIA [2014] AATA 374

Mulligan and NDIA [2015] AATA 974

TREATIES

Convention on the Rights of Persons with Disabilities (Opened for signature 30 March 2007) A/RES/61/106 (entered into force 3 May 2008)

SECONDARY MATERIALS

National Disability Insurance Agency, Operational Guideline: Access to the NDIS – Ch 8

REASONS FOR DECISION

Dr L Bygrave, Member

30 July 2018

INTRODUCTION

1. The applicant, Mr Richard Sheldon, lodged an access request form to become a participant in the National Disability Insurance Scheme (NDIS) on 25 October 2016. Dr Evan Khoshaba (general practitioner) completed the form, which listed Mr Sheldon’s disabilities as:

   chronic back problem (multiple disc prolapse), cervical stenosis, diabetic neuropathy, sleep apnoea[1]

   [1] Exhibit T - T5, page 16.

2. On 27 January 2017, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that Mr Sheldon does not meet the access criteria specified in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

3. Mr Sheldon requested an internal review of this decision and on 6 July 2017, an internal review officer of the NDIA affirmed the decision.

4. On 19 July 2017, Mr Sheldon lodged an application for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard in Sydney on 27 April 2018 and 28 June 2018. Mr Sheldon had legal representation at the Tribunal hearing. He attended the hearing and gave oral evidence by conference telephone.

   RELEVANT LEGISLATION AND ISSUES

   The NDIS legislative framework

6. The Parliament of Australia expressly provided objects and principles in the Act to give guidance on the interpretation of the statute. The objects of the Act are set out in section 3 and include:

   ·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

   ·supporting the independence and social and economic participation of people with disability; and

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.

7. Section 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. Section 4 sets out the general principles guiding actions under the Act. These principles include affirming that people with disability should be supported to exercise choice in the pursuit of their goals and the planning and delivery of their supports; and acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability.

9. Under section 209(1) of the Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Rules), which form part of the legislation.

10. The CEO of the NDIA has also written Operational Guidelines to assist staff in making decisions and performing other functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    The access criteria

11. To become a participant in the NDIS, Mr Sheldon must satisfy the access criteria. The primary access criteria are summarised in section 21(1) of the Act:

    21 When a person meets the access criteria

    (1)       A person meets the access criteria if:

    (a)The CEO is satisfied that the person meets the age requirements (see section 22); and

    (b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c)The CEO is satisfied that, at the time of considering the request:

    (i)     The person meets the disability requirements (see section 24); or

    (ii)    The person meets the early intervention requirements (see section 25).

12. Section 21(2) of the Act also provides alternative access criteria that, described simply, outlines that a person may be able to access the NDIS if they were receiving supports throughout a period and under a program prescribed by the Rules.

13. There is no dispute that Mr Sheldon meets the age requirements in section 22 of the Act and the residence requirements in section 23 of the Act. Mr Sheldon also accepts he does not meet the early intervention requirements provided in section 25 or the alternative access criteria to the NDIS set out in section 21(2) of the Act.

14. The issue in dispute, and therefore the issue for determination by the Tribunal, is whether Mr Sheldon meets the disability requirements set out in section 24 of the Act.

15. Section 24 of the Act states:

    24 Disability requirements

    (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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.

16. The Operational Guideline – Access to the NDIS (the Access Operational Guideline) also provides policy guidance at Chapter 8, “The Disability Requirements”.

    EVIDENCE

17. In considering whether Mr Sheldon meets the requirements in section 24 of the Act, I have had regard to the following evidence.

    Mr Sheldon’s evidence

18. Mr Sheldon provided a written statement dated 10 November 2017 and gave oral evidence to the Tribunal on 27 April 2018.

19. Mr Sheldon is 57 years old and lives on the mid-north coast of New South Wales with his wife and three children. Due to his impairments, he is in receipt of the disability support pension and his wife receives carer payment.

20. In 2000, Mr Sheldon fell down his front steps as he was leaving home to go to work and injured his back. He told the Tribunal he was “unconscious for a minute or two”, “couldn’t feel anything from the waist down for a couple of hours” and was “in a lot of pain”. He said he made an appointment to see his doctor for that afternoon. His doctor then sent him to have x-rays and told him to take medication for the pain.

21. Mr Sheldon said the x-rays revealed he had three bulging discs in his lower back and two in his neck. He saw a physiotherapist twice weekly and did exercises at home, attended hydrotherapy weekly and went to a pain management clinic at Newcastle Hospital. He received worker’s compensation within two months of his accident and was subsequently dismissed from his employment. Mr Sheldon has not been employed since his accident in 2000 and he was granted the disability support pension in 2002.

22. In 2011, Mr Sheldon was referred to Dr Brian Hsu (adult and paediatric spine surgeon). In his written statement, Mr Sheldon wrote that he discussed surgical options with Dr Hsu:

    He [Dr Hsu] said it was 50/50 – it [surgery] might help but it might not. It was going to be expensive. Plus there were risks involved. If they took the spur out, and the nerves weren’t right, that would be it. I’d be in a wheelchair…[2]

    [2] Exhibit A1, paragraph 39.

23. At the Tribunal hearing, Mr Sheldon confirmed that his understanding from Dr Hsu in 2011 was that spinal surgery may result in him being in a wheelchair and this was not a risk he was prepared to undertake.

24. Mr Sheldon has only seen Dr Hsu for specialist review and treatment options. While he saw Professor YAE Ghabrial (orthopaedic and spinal surgeon) in 2007, this was for the purpose of workers compensation assessment and Mr Sheldon said that Professor Ghabrial did not provide him with any advice about possible treatment.

25. Mr Sheldon’s spinal condition is currently treated with exercises, hydrotherapy and pain medication. He said he is always in pain but only uses medication when necessary to “take the edge off” as he does not like taking medication. When the pain is severe, Mr Sheldon said he takes pain medication and goes to his bedroom to lie down.

26. Mr Sheldon said he requires assistance to mobilise and self-care. He uses the assistance of a walking stick to move around his home, and “bounces off” furniture and walls and grab bars. He said he uses a walking stick to provide stability because his legs sometimes “just give way underneath” him. Mr Sheldon sits in a “lift chair” in the lounge, which raises him from a seated to standing position, but acknowledged that he is able to sit in a chair at the dining table. Mr Sheldon said he is able to drive short distances of about 10 minutes in the company of another person. When outside his home, he uses a four-wheel rolling walker to move around shops or places with even ground which allows him to tolerate walking for between five and 20 minutes before he needs to sit and rest. Mr Sheldon said he uses a wheelchair if he attends activities such as a function at his children’s school, which requires him to move over uneven ground or move between standing and sitting positions.

27. Mr Sheldon also provided oral evidence about requiring assistance with self-care. He said that, due to stiffness in his spine and legs in the morning, he has difficulties in accessing the toilet and so uses a bottle if he needs to urinate during the night and when he wakes up in the morning. He also explained that, due to the slowness of his movements even during the day, he sometimes does not make it to the toilet in time and accidently urinates on the floor; this occurs approximately twice a week. This situation is also affected by Mr Sheldon’s diabetes and prostate condition; he said he is seeing an urologist and requires an operation for his prostate condition.

28. Mr Sheldon said his wife assists him with showering because he is unable to bend over to wash or dry himself below his waist. His wife also prepares his meals and “does everything with the kids”.

29. Mr Sheldon applied to the NDIS because his equipment is second-hand and he requires assistance with home care.

    Medical evidence

30. Dr William J McClean (consultant physician geriatric medicine and pain management in the elderly) reported on 25 May 2005 that Mr Sheldon attended his clinic. Dr McClean stated that Mr Sheldon’s spinal injury has affected his activities of daily living and he requires assistance from his wife to shower and dress. He reported that Mr Sheldon attended a rehabilitation service and spent two weeks at a pain management course at the Royal Newcastle Hospital, which “helped for sometime and he was able to get off his medications for a few months but because of the demands of family life, he finds he cannot do the exercises and activities that were recommended…”.[3] Dr McClean opined that treatment for Mr Sheldon was to continue pain medication and exercises.

    [3] Exhibit A6.

31. Professor Ghabrial provided a report dated 24 January 2007, which set out his opinion of Mr Sheldon’s permanent impairments due to his neck and back injury. Professor Ghabrial opined that:

    It is highly likely that he [Mr Sheldon] will continue with his present disabilities and remains unfit for activities involving heavy lifting, excessive bending and excessive twisting as a result of his injuries.[4]

    [4] Exhibit A4.

32. An MRI of Mr Sheldon’s lumbar spine by Dr Geraldine Long (radiologist) on 31 May 2011 confirmed he has:

    Advanced L4/5 and L5/S1 disc degeneration with associated large central and left paracentral L5/S1 disc protrusion resulting in moderate canal stenosis and bilateral foraminal stenosis.[5]

    [5] Exhibit A5.

33. Mr Sheldon first saw Dr Hsu in 2011 for review and treatment for his spinal condition. Dr Hsu has provided reports that are before the Tribunal dated 1 June 2011, 2 August 2011, 16 July 2017, 15 August 2017, 27 November 2017 and 26 March 2018.

34. On 2 August 2011, Dr Hsu reported:

    Mr Sheldon continues to experience some back pain and leg pain, mainly in the posterior thigh down to the knees. It is mainly discogenic back pain. Overall he feels that his symptoms have been ongoing for quite a number of years and he has learned to manage the symptoms. He is not interested in any invasive intervention, but I did counsel him regarding cardiovascular fitness and a core strengthening program. I feel that these will help him and I would be happy to guide him through further treatments if he wishes to pursue this line.[6] [emphasis added]

    [6] Exhibit T - T6.

35. Dr Hsu reported on 16 July 2017 that he had not seen Mr Sheldon since 2011, when they had “discussed nonoperative and operative treatment” and concluded “there was no definitive surgical treatment that would guarantee improvement of his overall function and therefore we decided not to proceed with any surgical intervention”.[7]

    [7] Exhibit A8.

36. On 15 August 2017, Dr Hsu noted that Mr Sheldon’s:

    …option of proceeding with spinal surgery may or may not return him to functionality and chances of success are approximately 50%. Therefore, Richard has elected not to proceed with surgical intervention.[8]

    [8] Exhibit A9.

37. Dr Hsu provided a further report dated 27 November 2017 in answer to questions from Mr Sheldon’s solicitor. In this report, Dr Hsu opined that Mr Sheldon’s:

    ·back pain “will not improve” and “will likely become worse”;

    ·condition and functionality “will not improve” even if he continues physiotherapy, hydrotherapy and at-home exercises;

    ·there is no treatment, other than surgical intervention, that will improve his day to day functionality;

    ·proposed surgical intervention is a spinal fusion and “it is possible but unlikely” that his day to day functionality would be worse than before the surgery.[9]

    [9] Exhibit A10.

38. Despite being specifically asked whether there are any risks involved in surgical intervention and if so, to outline these risks, Dr Hsu did not answer these questions or report any risks involved with surgery in any of his reports.

39. In a letter to Mr Sheldon’s solicitor on 26 March 2018, Dr Hsu noted that he has “never spoken of surgery in depth to Mr Sheldon”.[10]

    [10] Exhibit A11.

40. For completeness, the Tribunal adjourned this matter after the first hearing day so that Mr Sheldon’s legal representative could inquire about Dr Hsu’s availability to provide oral evidence. I understand that Dr Hsu initially indicated his willingness to provide evidence on behalf of Mr Sheldon, but then cancelled his availability four days prior to the resumed hearing day and indicated that he would only be available on a different date to provide evidence if a substantial up-front fee was paid. Given these circumstances, no further evidence from Dr Hsu is before the Tribunal.

    Evidence – occupational therapist

41. The NDIA obtained an assessment of Mr Sheldon’s functional activities of daily living from Ms Michelle Dixon (occupational therapist).

42. Ms Dixon provided a report dated 9 March 2018. This report set out information about Mr Sheldon’s mobility in his home including his use of aids, which were listed as:

    grab bars at all entrance steps, in the toilet and shower, cane, 4 wheeled walker, wheelchair, stand assist recliner, and shoe horn[11]

    [11] Exhibit R1, page 3.

43. The report also provided a summary of problems, recommendations and actions to assist Mr Sheldon’s functionality. Mr Sheldon said to the Tribunal that Ms Dixon’s report was a “reasonable reflection of his difficulties”.

44. At the Tribunal hearing, Ms Dixon said Mr Sheldon’s current equipment is second hand and therefore not prescribed or appropriate for his height and weight. She observed that this meant there was a risk of Mr Sheldon’s equipment failing, which could compromise his health and safety.

45. Ms Dixon also discussed Mr Sheldon’s co-morbidities; in particular, his diabetes and prostate condition affecting his urgency to urinate, and his spinal condition causing him to move slowly when he needs to mobilise to quickly access the toilet. She also opined that, due to Mr Sheldon’s diabetes and risk of infection, one of his most important care requirements is clipping his toe-nails and this is undertaken by a podiatrist.  

    CONSIDERATION

46. Under section 103 of the Act, I am satisfied the Tribunal has jurisdiction to review the internal review decision dated 6 July 2017 as it was made pursuant to section 100(6)(a) of the Act.

    The disability requirements

47. Section 24(1) of the Act is satisfied if Mr Sheldon meets all five requirements specified in paragraphs (a) to (e) of this provision. I now consider each of these requirements.

    Does Mr Sheldon have a disability within the meaning of section 24(1)(a)?

48. Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:

    For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.

    The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.

    The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).

49. The NDIA accepts that Mr Sheldon suffers from a spinal condition that is an impairment within the meaning of the Act.

50. Based on the medical evidence set out in paragraphs 30 to 39 above, I am satisfied that Mr Sheldon’s spinal condition (multiple disc prolapse and cervical stenosis) is a disability within the meaning of this provision because this condition reduces his physical function in terms of his ability to mobilise and undertake self-care.

    Are Mr Sheldon’s impairments permanent within the meaning of section 24(1)(b)?

1. The Rules set out the following paragraphs regarding when an impairment is permanent or likely to be permanent:

   5.4 An 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.

   5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

   5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition. [emphasis added]

2. Mr Sheldon’s evidence is that treatment for his spinal condition has consisted of attending a pain clinic in 2001, doing physiotherapy exercises and hydrotherapy, and taking pain medication when required.

3. At the Tribunal hearing, evidence focused on whether surgery was a treatment available to Mr Sheldon that would be likely to improve his spinal impairment. The following findings are based on the evidence before the Tribunal:

   ·Dr Hsu and Mr Sheldon only discussed spinal surgery in 2011.

   ·Mr Sheldon’s recollection of the discussion with Dr Hsu about surgery was that it involved risks, including that it could result in him being in a wheelchair.

   ·Dr Hsu has made the following statements about surgery:

   othere is no definitive surgical treatment that would guarantee improvement of Mr Sheldon’s overall function (made on 16 July 2017);

   ospinal surgery may or may not return him to functionality and chances of success are approximately 50% (made on 15 August 2017);

   othere is no treatment, other than surgical intervention, that will improve Mr Sheldon’s day to day functionality (made on 27 November 2017); and

   osurgical intervention is a spinal fusion and it is possible but unlikely that Mr Sheldon’s day to day functionality would be worse than before the surgery (made on 27 November 2017).

   ·Dr Hsu wrote in March 2018 that he never spoke about surgery “in depth” to Mr Sheldon in 2011.

   ·Other than Dr Hsu, Mr Sheldon has not seen any other medical specialists about surgical options.

4. While I understand and appreciate Mr Sheldon’s concerns about potential risks involved in spinal surgery, I must weigh these concerns against Dr Hsu’s expert evidence. However, this is a difficult task because Dr Hsu’s evidence on the potential success and any risks associated with spinal surgery is not consistent and is ambiguous. At best, Dr Hsu’s written reports indicate that potential surgery to treat and remedy Mr Sheldon’s spinal condition has not been extensively considered or discussed.

5. The evidence before the Tribunal also shows that Mr Sheldon has not undertaken any recent medical review about alternative treatments for his spine impairment. I note the report of Dr McClean noted that attending a pain clinic assisted Mr Sheldon; however, there is no evidence that Mr Sheldon has attended a pain clinic for treatment since 2001. In 2011, Dr Hsu also offered to assist Mr Sheldon with cardiovascular fitness and a core strengthening program. This has not been undertaken. Further, Mr Sheldon has not seen any specialist for review and treatment other than Dr Hsu.

6. As there may be further treatments available for Mr Sheldon’s spinal impairment, I cannot be satisfied that he has considered all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. I am not satisfied his impairment is permanent within the meaning of section 24(1)(b) of the Act.

   Does Mr Sheldon’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities, communication, social interaction, learning, mobility, self-care and self-management within the meaning of section 24(1)(c)?

7. To comply with section 24(1)(c) of the Act, Mr Sheldon must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).

8. Paragraph 5.8 of the Rules provides:

   5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:

   (a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

   (b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

   (c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

9. Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:

   The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:

   By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

   In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

   Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

   When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age.

   …

   A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

   When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person’s ability to function in the periods between acute episodes. [emphasis added]

10. Dr Hsu reported on 27 November 2017 that “[a]ll Mr Sheldon’s activities are affected by his mobility”.[12]

    [12] Exhibit A10.

11. Ms Dixon noted in her occupational therapist report that Mr Sheldon’s impairment had the following effects on his mobility and self-care:

    mobility; decreased balance, coordination and endurance are impacting independent mobility and he is reliant on grab bars, walking aids and/or wheelchair.

    self-care; Mr Sheldon requires assistance for his lower body management and would benefit from assistive technology to increase independence.[13] 

    [13] Exhibit R1, page 3.

12. Ms Dixon also provided a detailed assessment of Mr Sheldon’s activities of daily living. This is consistent with Mr Sheldon’s evidence and notes Mr Sheldon’s reliance on his wife for activities of dressing, bathing, domestic chores and meal preparation, shopping, transport to access the community and attend medical appointments, and their children’s sporting activities/commitments.

13. Mr Sheldon relies on a walking stick and grab bars to mobilise around his home. These items are described in chapter 8.3.1 of the Access Operational Guideline as “commonly used items” and, as such, do not indicate substantially reduced functional capacity. However, Mr Sheldon’s evidence to the Tribunal, which was verified by Ms Dixon, is that he uses a stand assist recliner to sit in his home and requires either a four wheeled walker or wheelchair to move outside his home environment. I am satisfied that these items are not “commonly used items” and Mr Sheldon’s dependence on these items indicates his impairment causes substantially reduced functional capacity.

14. In relation to the activities set out in section 24(1)(c) of the Act, I find that Mr Sheldon’s impairments result in substantially reduced functional capacity to undertake mobility and self-care.

    Does Mr Sheldon’s impairments affect his capacity for social or economic participation within the meaning of section 24(1)(d)?

15. Mr Sheldon has not been employed since he sustained his spinal injury in 2000. He also has difficulties in attending social events or engaging in social activities due to his pain levels and requirement to access events in a wheelchair. This evidence shows that Mr Sheldon’s spinal impairment affects his capacity for social and economic participation.

16. I am satisfied that Mr Sheldon meets the requirement in section 24(1)(d) of the Act.

    Is Mr Sheldon likely to require support under the NDIS for his lifetime within the meaning of section 24(1)(e)?

17. Chapter 8.5 of the Access Operational Guideline states the following:

    8.5 When is a person likely to require support under the NDIS for their lifetime?

    The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).

    If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person’s lifetime, despite the variation (section 24(2)).

    The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).

    For example, if a person’s support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

    When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person’s lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]). [emphasis added]

18. As set out at paragraph 56, I have not found that Mr Sheldon’s spinal impairment is “permanent” because there may be further treatments to remedy his spinal impairment.

19. Consequently, I cannot find that Mr Sheldon will require assistance under the NDIS for his lifetime and does not meet the requirement of section 24(1)(e) of the Act.

    CONCLUSION

20. For the reasons set out above, I find Mr Sheldon does not meet the disability requirements set out in section 24 of the Act.

21. As I am satisfied that Mr Sheldon does not meet the access criteria in sections 21–25 of the Act, I find the decision of the internal review officer dated 6 July 2017 is correct.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of
Dr L Bygrave, Member

...........................[sgd].............................................

Associate

Dated: 30 July 2018

Dates of hearing:	27 April 2018 and 28 June 2018
Counsel for the Applicant:	Mr T Liu, 7 Wentworth Selborne
Solicitors for the Applicant:	Ms N Cannon, Legal Aid NSW
Solicitors for the Respondent:	Mr K Eskerie and Ms L Hinwood, Sparke Helmore