Short and National Disability Insurance Agency

[2022] AATA 1437

Short and National Disability Insurance Agency [2022] AATA 1437 (25 May 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2019/8476          

Re:JAYDEN AUSTIN SHORT  

APPLICANT

NATIONAL DISABILITY INSURANCE AGENCYAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:25 May 2022  

Place:Brisbane

The Tribunal affirms the decision under review.

........................[SGD]................................

Senior Member Katter

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY – access to the scheme – multiple impairments – whether impairments are permanent – whether impairments result in substantially reduced functional capacity – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunals Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

MRLK and NDIA [2021] AATA 3896

Mulligan v National Disability Insurance Agency (2015) 233 FCR 201

REASONS FOR DECISION

Senior Member Katter

25 May 2022

APPLICATION

1. This is a review of the Respondent’s decision that the Applicant did “not meet the access criteria”[1] in section 21 of the National Disability Insurance Scheme Act 2013 (“the Act”). 

   [1]        Exhibit 3, T2, p 22.

   BACKGROUND

2. The Applicant, Jayden Short, is a 22-year-old[2].

   [2]        Transcript, 16 December 2021, p 54 line 38.

3. The Applicant has been living in the State of Queensland[3]. 

   [3]        Transcript, 16 December 2021, p 26 line 10 and p 28 line 30; Exhibit 3, T4, p 29, p 1 of 8.

   4.The Applicant signed an “access request form”[4] on 11 February 2019[5].  In the form at Part E, the Applicant answered as to “my carer’s full name”:  “Elizabeth Short”[6].  At Part F of the form, the Applicant stated the following “disability, or need for early intervention supports”[7]:

   [4]        Exhibit 3, T4, p 29.

   [5]        Ibid, p 36.

   [6]        Ibid, p 32.

   [7]        Ibid, p 32.

Primary disability:  (This is the disability that has the most impact on your daily life)	Scheuermann’s disease Schrolosis Chronic back pain
Please list any other disabilities (if any):
Did you acquire your disability because of an injury?	No
Are you seeking, or have you previously sought compensation related to your disability or injury?	No

1. The Applicant, on the form, “asked a professional”[8], Dr Ng, a general practitioner, to complete Part F[9]:

   [8]        Ibid, pp 33-35.

   [9]        Ibid, pp 33-35.

   “ … Length of time you have known or treated the person making request?  4 years

   Primary disability and any secondary disabilities:  Scheuermanns disease

   Current treatment (if any):  Oral analgesis  Exercise

   Is there any other treatment that is likely to remedy the impairment?  No …   Does the person require assistance to be mobile because of their disability?  Yes,               needs assistance from other persons:  (physical assistance, guidance,   supervision or prompting) 

   If yes, please describe the type of assistance required:  May at times require        assistance to change positions.  Get out from a reading position.  Will   benefit from assistive technology to help with getting in and out of bed and                    chairs. …

   Does the person require assistance to communicate effectively because of their               disability?  No, does not need assistance …

   Does the person require assistance to interact socially because of their disability?    No, does not need assistance …

   Does the person require assistance to learn effectively because of their disability?    No, does not need assistance …

   Does the person require assistance with self-care because of their disability?  Yes,   need assistance from another person in the areas of:  showering/bathing …

   If yes, please describe the type of assistance required:  At times may require        assistance after bathing to change position.  Difficulty washing his own back                    and legs, needs assistance with this. …

   Does the person require assistance with self-management because of their    disability?  Yes, needs assistance from other persons:  (physical assistance,                   guidance, supervision or prompting)

   If yes, please describe the type of assistance required:  Needs assistance   with cooking and cleaning as has difficulty lifting. …

   Date  10/2/2019”  

2. With that access request form[10] there were documents as to the Applicant, by Dr Ng and Dr Albietz, a consultant orthopaedic surgeon[11]. 

   [10]       Ibid, p 29.

   [11]       Exhibit 3, T4A, pp 37-39.

3. By a letter dated 23 August 2019, stated to be by a delegate of the Chief Executive Officer (“CEO”) of the Respondent[12], it was stated[13]:

   “I am writing to let you know the outcome of your request to access the National   Disability Insurance Scheme … .  Unfortunately, based on the information provided,      you do not meet the access requirements set out in the [Act] to become a participant      of the [National Disability Insurance Scheme].  …

   Section 24 of the … Act outlines specific disability requirements to access the [National Disability Insurance Scheme]. Based on the information provided, you do not meet these requirements.

   More specifically, the requirement in: Section 24(1)(b) of the … Act, which requires that you must have an impairment that is permanent, or is likely to be permanent. … While you are not able to access supports through the [National          Disability Insurance Scheme], this decision in no way affects any existing supports you receive. …

   If you disagree with this decision or have new information, you can submit a request       for the decision to be reviewed within 3 months from the date of this letter.           Details about how to do this are at the end of this letter.”

   [12]       Exhibit 3, T8, p 42.

   [13]       Ibid.

4. There was a communication by Ms Elizabeth Short on 4 September 2019 to a Customer Service Officer of the Respondent[14], with that communication resulting in a request to review the decision of 23 August 2019[15].  On 9 September 2019, the “internal review team” of the Respondent corresponded to the Applicant, stating that the Applicant’s request for a review of the decision to access the National Disability Insurance Scheme (“NDIS”) had been received by the internal review team[16]. 

   [14]       Exhibit 3, T9, p 44.

   [15]       Exhibit 3, T8, p 42.

   [16]       Exhibit 3, T10, p 45.

5. By a letter dated 21 November 2019, stated to be by a delegate of the CEO of the Respondent[17], the following was stated[18]:

   “ … Internal review (s 100) of our earlier access decision (s 20) …

   I am writing [in] response to your request of 4/09/2019 that the National Disability Insurance Agency … review our earlier decision made on 21/08/2019 that you            did not meet the access criteria to become a participant of the National Disability         Insurance Scheme … .

   After careful consideration of your review request and the evidence you have       provided, I have decided to confirm the earlier decision.  This means that you will     not be able to access the [NDIS] at this time.

   The main issue … with your application is the permanency criteria.  My full reasons         are set out in the enclosed review report, which also suggests other community and      government programs that may support your needs.

   Please note that the staff member who made the earlier decision was not involved          in this review.

   I understand that this response may not be what you had hoped for.  If you would            like to discuss the reasons, please contact the [National Disability Insurance       Agency] on the numbers below to make a time to do so.

   You may also apply to the Administrative Appeals Tribunal … within 28 days of     receiving this letter for a further, external review of the decision.  More information       about external reviews of [NDIS] guidelines is available at part 6 of the [NDIS] Operational Guideline – Review of Decisions. … ”

   [17]       Exhibit 3, T2, p 21.

   [18]       Ibid, p 20.

6. The reasons as to the internal review[19] referred to consideration of the following documents[20]:

   “ … 1.  Dr Leah Goodwin (Rehabilitation Physician), letter, 27 April 2018.

   2.        Dr Reynard Ng (General Practitioner), Access Request Form, 10 February            2019.

   3.        Dr John Albeitz (Orthopaedic Surgeon), letter, 23 April 2019.

   4.        Dr Reynard Ng (General Practitioner), letter, 2 May 2019.

   5.        Ian Montgomery (Exercise Physiologist), assessment report, 1 May 2019.

   6.        Jayden Short, Email, 26 June 2019 … ”

   [19]       Ibid, p 20.

   [20]       Ibid, p 22.

7. The reasons stated that the following access criteria were satisfied[21]: section 22 age and section 23 residence. The reasons stated that the following access criteria were not satisfied[22]: section 24 disability (criteria (a) on impairments, (b) on permanence, (e) on lifetime NDIS support), section 25 early intervention (criteria (a) on impairments, (b) on reducing future need for support and (c) on improving capacity) and section 25(3) that the NDIS is the most appropriate support system.

   [21]       Ibid, p 22.

   [22]       Ibid, pp 23-26.

8. An application for review of decision was submitted to the Tribunal on 17 December 2019[23].  In the application for review form, the Applicant seeks review of the decision made on 21 November 2019[24].  “As to why the decision of 21 November 2019 is wrong”, the Applicant stated[25]:  “ … they have stated things on their refusal letter which I do not agree with and [I] feel that the decision needs to be reviewed by the [Tribunal].  Criteria (c) on functional impact is wrong[;] rule 5.4 I do not agree with.  I do not agree with the whole letter and why they have reached the decision and the things that have been stated in the letter.”

   [23]       Exhibit 3, T1, p 15.

   [24]       Exhibit 3, T2, p 20.

   [25]       Exhibit 3, T1, p 19.

   SECTION 24

9. The Applicant, as referred to above, made an access request dated 11 February 2019[26] to the Respondent, to become a participant in the NDIS: section 18 of the Act.

   [26]       Exhibit 3, T4, p 36.

10. The access request[27] was in the Respondent’s form, which form included information, was accompanied by documents and was certified by the Applicant: subsection 19(1) of the Act.

    [27]       Ibid.

11. Section 20 of the Act states, that if a person makes an access request, the CEO must, within 21 days of receiving the access request: (a) decide whether or not the prospective participant meets the access criteria; or (b) make one or more requests under subsection 26(1). Subsection 26(1) refers to requests to provide information that are reasonably necessary for deciding whether or not the prospective participant meets the access criteria or for the prospective participant to undergo an assessment. Further to the access request form[28], as referred to above, it appears from the documents provided by the parties that requests were made for the Applicant to undergo assessments[29], before the decision[30], as to whether or not the Applicant met the access criteria. Neither party contended that there was an issue as to the timing further to section 20 of the Act.

    [28]       Ibid, p 29.

    [29]       Exhibit 3, T7, pp 40-41.

    [30]       Exhibit 3, T8, p 42.

12. Subsection 21(1) of the Act states:

    “(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).”

13. The Respondent contends that the Applicant does not ‘meet the disability requirements’ in section 24 of the Act (subparagraph 21(1)(c)(i) of the Act), with sections 22 and 23 of the Act being ‘met’ in the Respondent’s submission (paragraphs 21(1)(a) and (b) of the Act)[31]. 

    [31]       Respondent’s Closing Submissions, 21 February 2022, [10].

14. The Applicant stated that only section 24 was in issue and not section 25 of the Act[32] (subparagraphs 21(1)(c)(i) and (ii)), further to a similar articulation by the Respondent[33]. 

    [32]       Transcript, 16 December 2021, p 10 lines 5 to 39.

    [33]       Respondent’s Closing Submissions, 21 February 2022, [10].

15. The Respondent submits that the Applicant ‘meets’ the requirement in paragraph 24(1)(a) as to Scheuermann’s Disease which has led to a thoracic kyphosis[34] (“kyphosis”).  The Respondent submits that the Scheuermann’s Disease leading to a kyphosis constitutes an impairment for the purpose of paragraph 24(1)(a) of the Act[35].  Scheuermann’s Disease, as referred to above, was the only ‘primary disability and secondary disability’[36], stated by Dr Ng in the Access Request Form, signed by the Applicant on 11 February 2019[37].  Dr Aponso’s evidence is that the Applicant has Scheuermann’s Disease with a thoracic kyphosis[38]. The kyphosis is an impairment, as that word is used in paragraph 24(1)(a) of the Act.

    [34]       Respondent’s Closing Submissions, 21 February 2022, p 4, [24].

    [35]       Ibid.

    [36]       Exhibit 3, T4, p 33.

    [37]       Ibid, p 36.

    [38]       Exhibit 8, Report of Dr Aponso, spine surgeon, 23 December 2020, p 7.

16. On the Access Request Form the Applicant referred to “Schrolosis”, as a ‘primary disability’[39].  The Applicant subsequently stated that the ‘Scheuermann’s Disease and scoliosis are, from his point of view, interrelated’, with the pain being ‘together’[40].  Dr Aponso stated that the Applicant does not have a scoliosis, separate from, or additional to, the kyphosis[41]. The medical evidence does not therefore indicate scoliosis separate from, or additional to, the kyphosis, as an impairment, as that word is used in paragraph 24(1)(a) of the Act[42].

    [39]       Exhibit 3, T4, p 32.

    [40]       Transcript, 16 December 2021, p 9, lines 31-36.

    [41]       Transcript, 10 February 2022, p 78, lines 26-29.

    [42]       Respondent’s Closing Submissions, 21 February 2022, [27].

17. On the Access Request Form the Applicant then also referred to “Chronic back pain”, as a “primary disability”[43].  The Applicant stated that the ‘Scheuermann’s Disease and scoliosis are both causing pain, but it is the same broad pain relatively’[44].  The Respondent does not question the Applicant’s pain from the back[45].  The Applicant, as referred to above, inter-related the pain to the Scheuermann’s Disease and the scoliosis[46], indicating that the pain was and is not a separate impairment from the kyphosis according to paragraph 24(1)(a) of the Act.

    [43]       Exhibit 3, T4, p 32.

    [44]       Transcript, 16 December 2021, p 9, lines 31-42.

    [45]       Respondent’s Closing Submissions, 21 February 2022, [40].

    [46]       Transcript, 16 December 2021, p 9, lines 31-42.

18. The Applicant referred to a degenerative bone disorder as causing more pain in his lower back[47], stating that that was a third impairment, in his submission[48].  The Respondent “accepts” that ‘there is a shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’[49]. That is a further impairment (paragraph 24(1)(a) of the Act).

    [47]       Transcript, 16 December 2021, p 9, lines 45-46.

    [48]       Ibid, p 10, lines 1-6.

    [49]       Exhibit 12, summonsed document, p 23.

19. The Applicant stated that he also has pain on his ‘tailbone to the lower [right] back hip and it just goes through down to my spine’[50], with that pain starting about 2 months before the hearing[51].  Mr Farmer had reported in June 2020 that the Applicant’s hip range of motion was ‘largely unremarkable’[52].  A report by Dr Budak, dated 11 October 2021, states that the Applicant has[53]:  ‘Subtle degenerative changes at the symphysis pubis – no acute osteitis pubis or other pertinent abnormality to account for the patient’s clinical presentation.’  Dr Aponso stated that the Applicant has ‘some degenerative changes in the symphysis pubis’[54]. That is a further impairment (paragraph 24(1)(a) of the Act).

    [50]       Transcript, 16 December 2021, p 24, lines 14-25.

    [51]       Ibid, lines 14-15.

    [52]       Exhibit 11, H4, Tender Bundle, p 215. 

    [53]       Exhibit 10, Tender Bundle, p 197.

    [54]       Transcript, 10 February 2022, p 75, lines 35-37.

20. The Applicant did refer to his weight (or the significant loss of weight) as a potential further paragraph 24(1)(a) impairment, however stated that ‘there was no specific documentary evidence in that regard’[55]. 

    [55]       Transcript, 16 December 2021, p 18, lines 10-35. 

21. As to those impairments (kyphosis, ‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’ and ‘degenerative changes at the symphysis pubis’), paragraph 24(1)(b) of the Act requires that they “are, or are likely to be, permanent”. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the “Rules”), rules 5.4 to 5.7 state:

    “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.

    5.6 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).

    5.7If 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.”

22. In MRLK and NDIA [2021] AATA 3896 at [132], the Tribunal stated in relation to rule 5.4:

    “The Access Guideline refers to ‘remedy’ as being to cure or substantially relieve the impairment. In this regard, as the Tribunal set out in FBJV and NDIA [2021] AATA 913 at 117, the word ‘remedy’ should be given its ordinary everyday meaning. The Macquarie Dictionary relevantly defines ‘remedy’ to mean ‘something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment’ [emphasis added]. For completeness, the Tribunal notes that ‘relieve’ is defined to mean ‘to ease or alleviate (pain, distress, anxiety, need, etc.).’ Accordingly, an impairment is ‘permanent’, or likely to be permanent, for the purpose of determining access to the NDIS, when there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to cure or relieve the impairment. This necessarily includes easing the impact or effects of the impairment.”

23. As to the kyphosis, Dr Aponso stated that[56]:  ‘I believe Mr Short would benefit from a further review regarding his thoracic kyphosis particularly to assess any progression of the curve.  If appropriate, surgical intervention may be a consideration.’  Dr Aponso further stated that surgery is to stop the kyphosis from increasing[57]:  ‘you can get a correction, but it is always a partial correction, so you don’t fix the whole curve and you don’t go back to what it would have been if you never had that problem.’  As to the Applicant attending a chiropractor and for acupuncture, Dr Aponso stated that they would not alter the progression of the thoracic kyphosis and would assist in managing pain, providing immediate relief or a short period of relief[58].  The kyphosis is, having regard to Dr Aponso’s evidence, likely to be permanent, in that there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the kyphosis, as if the Applicant never had that problem[59] (rule 5.4 of the Rules). Dr Aponso therefore indicates that surgery may have the prospect of improving the severity of the impact of the kyphosis on the Applicant’s functional capacity, however rule 5.5 of the Rules states that the kyphosis may be permanent notwithstanding. As to the kyphosis, Dr Aponso stated[60]:  ‘I believe Mr Short would benefit from a further review regarding his thoracic kyphosis particularly to assess any progression of the curve.’  Dr Aponso referred to the review of the Applicant as to whether the kyphosis was ‘getting worse’[61], ‘whether surgery would halt the progression’[62] and the nature of the surgery[63]. As referred to above, Dr Aponso was not referring to the surgery and the review as being required to determine whether the kyphosis is permanent or is likely to be permanent (rule 5.6 of the Rules)[64], in that the surgery will not take the Applicant to a circumstance where there had not been kyphosis[65]. The kyphosis, as stated by Dr Aponso, is or is likely to be permanent, where further medical treatment or review will not be required to demonstrate permanency or likely permanency, although the kyphosis may continue to be treated and reviewed (rule 5.6 of the Rules).

    [56]       Transcript, 10 February 2022, p 73, lines 33-45.

    [57]       Ibid, p 77, lines 35-38.

    [58]       Ibid, p 76, lines 45-47 and p 77, lines 1-13. 

    [59]       Ibid, p 77, lines 35-38.

    [60]       Ibid, p 73, lines 33-45.

    [61]       Ibid, line 43.

    [62]       Ibid, lines 17-18.

    [63]       Ibid, lines 18-32.

    [64]       Transcript, 10 February 2022, p 77, lines 35-38.

    [65]       Ibid.

1. The Applicant stated that the ‘curve on his back has since worsened’[66].  Ms Short gave similar evidence, stating that the Applicant is ‘starting to hunch over a lot’[67].   Dr Aponso stated that[68]:

   “ … So, one of the underlying themes of when I reviewed Mr Short was the fact that he had noticed that his curve was more prominent, that he had noticed how much more he was bent forward and how much more of the curve was evident.  One of the underlying aspects to it and it was apparent because he had worked on weight loss and whether it was because of that, kind of, unmasking the curve.  And that could be the most simplistic thing to put it down to.  But I think, that aside, I felt that a review of the curve would be beneficial for his sake to make sure that if it was getting worse, that he has that tended to, because that would be the whole issue with kind of medical treatment for the thoracic kyphosis.”

   [66]       Transcript, 16 December 2021, p 30, lines 37-43.

   [67]       Ibid, p 55, line 35.

   [68]       Transcript, 10 February 2022, p 73, lines 35-45.

2. The kyphosis is getting worse on the evidence of the Applicant[69] and Dr Aponso stated[70]:

   “ … if you told me it was getting worse, that would mirror exactly my sentiments from       back in 2020, which is that I think you need to get it clinically assessed. … I’m not clinically treating [the Applicant], nor can I, so therefore my thoughts on    whether it has progressed or not probably is very – it probably doesn’t really add          much more than me already acknowledging that it’s something you’ve told me is        progressing.”

   [69]          Transcript, 16 December 2021, p 30, lines 37-43.

   [70]          Transcript, 10 February 2022, p 85, lines 18-20.

3. The kyphosis is of a ‘degenerative nature’, as stated by the Applicant[71], where there is a progressive deterioration in the Applicant’s back.  Dr Aponso did not contend otherwise, as referred to above, and acknowledged that it is something that the Applicant states is progressing.  After seeing the Applicant on 23 April 2019, the Applicant’s then treating orthopaedic surgeon, Dr John Albietz, said there was a thoracic curve of 67 degrees and that ‘there is no indication for spinal intervention for the magnitude of that curve which is likely to only very slightly progress if at all’[72].  Dr Aponso gave evidence that Scheuermann’s disease starts to manifest in adolescence, when the person goes through their growth ‘spurt’, but typically once the individual has reached skeletal maturity and stopped growing, the wedging of the spine leading to the curvature ceases to progress, unless the curve is ‘significant’ in which case it can continue to progress[73].  If the kyphosis is of a ‘degenerative nature’, then the kyphosis would not be permanent in that medical or other treatment would, or would be likely to, improve the kyphosis (rule 5.7 of the Rule):  including the potential for surgery to improve the kyphosis, as referred to by Dr Aponso[74].

   [71]          Transcript, 16 December 2021, p 30, lines 37-43.

   [72]          Exhibit 3, T5.

   [73]          Transcript, 10 February 2022, p 71, lines 33-47 to p 72, lines 1-4.

   [74]          Ibid, p 73, lines 18-32.

4. The Respondent submits[75] that the Applicant led no evidence about the permanency or otherwise of the ‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’[76] and the ‘degenerative changes at the symphysis pubis’[77].  As to the ‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’, Dr Aponso stated:

   “Do you think the disc bulge would be causing a decent amount of pain or not really?       No, … a bulged disc does not have nerve fibres to cause you pain.  A bulged disc   typically would be a reflection of some wear and tear.  So, yes, you can have back       pain with a bulged disc.  One doesn’t cause the other.  So, if you were having an injection to deal with the back pain, that kind of makes sense if you’ve had a scan     showing a bulged disc, that’s something I’d see all the time.”

   [75]          Respondent’s Closing Submissions, 21 February 2022, [51].

   [76]       Transcript, 16 December 2021, p 9, lines 45-46.

   [77]       Exhibit 10, Tender Bundle, p 197.

5. As to the ‘degenerative changes at the symphysis pubis’[78], Dr Aponso stated[79]:  ‘I think that he should have a clinical review first by somebody to assess that.  I think based on that clinical review there’s a whole host of investigations that could be undertaken, including X-rays and diagnostic injections and courses of rehab and like, other types of MRI scans that can look into it.  So, there’s a lot of things that could be done.’  As to the pain experienced by the Applicant, Dr Aponso stated that ‘if pain patterns worsen and if pain patterns need to be reassessed, I think further treatment or further assessment … would be worthwhile’[80]. These impairments (‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’ and ‘degenerative changes at the symphysis pubis’) require medical treatment and review before a determination can be made about whether these particular impairments are permanent or likely to be permanent (rule 5.6 of the Rules). The impairments are not permanent, where they require further review in order for their permanency or likely permanency to be demonstrated (rule 5.6).

   [78]       Ibid.

   [79]       Transcript, 10 February 2022, p 76, lines 14-19.

   [80]       Ibid, p 78, lines 6-10.

6. The Applicant can only meet the disability requirements if the impairments (kyphosis, ‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’ and ‘degenerative changes at the symphysis pubis’) result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management (paragraph 24(1)(c) of the Act).

7. Rule 5.8 of the Rules states:

   “When does an impairment result in substantially reduced functional capacity        to undertake relevant activities?

   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.” 

8. Whether or not the reduction is “substantial” is “an evaluative exercise”[81]. The Respondent submits that the question posed by paragraph 24(1)(c) of the Act is “avowedly functional”[82] and requires the Tribunal with “a relatively high degree of precision”[83] to objectively consider what the Applicant with the impairments can or cannot do.  The Respondent further submits that the Tribunal could expect the Applicant to adduce detailed evidence from an occupational therapist following an in-home assessment of functional capacity and should not act upon a person’s self-report of functional capacity, unless corroborated.

   [81]       Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, [56].

   [82] Ibid, [55].

   [83] Ibid.

9. The Respondent submits that paragraph 24(1)(c) of the Act is not ‘met’[84].   The Respondent ‘accepts that the Applicant has reduced functional capacity in the following activities:  mobility; and self-care’[85]. 

   [84]       Respondent’s Closing Submissions, 21 February 2022, [30].

   [85]       Ibid, [69].

10. Paragraph 24(1)(c) of the Act requires that the Applicant have substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the named activities resulting from the impairments: kyphosis; ‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’; and ‘degenerative changes at the symphysis pubis’.

11. The Access to the NDIS Operational Guidelines of 16 July 2019 at paragraph 8.3 stated: 

    “8.3  Substantially reduced functional capacity to undertake relevant activities

    The NDIA must be satisfied that an impairment results in substantially reduced     functional capacity of a prospective participant to undertake one or more relevant       activities (section 24(1)(c)).

    The NDIA is required to consider whether any permanent impairment, or permanent        impairments when considered together, result in substantially reduced functional          capacity to undertake one or more of the following activities:

    ·     Communication:  includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;

    ·     Social interaction:  includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;

    ·     Learning:  includes understanding and remembering information, learning new things, practising and using new skills;

    ·     Mobility:  this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;

    ·     Self-care:  means activities relating to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or

    ·     Self-management:  means the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances. … ”

12. The Guidelines of 2 May 2022 state: 

    “Does your impairment substantially reduce your functional capacity?
    Your permanent impairments 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.”

13. As to communication (the first of the specific activities in paragraph 24(1)(c) of the Act), the Applicant is able to be understood in the ‘spoken word’[86] and ‘handwritten word’[87], and understood questions in oral evidence[88], therefore indicating that the impairments do not result in substantially reduced functional capacity as to communication.   

    [86]       For example, Transcript, 16 December 2021, pp 6-8. 

    [87]       Exhibit 3, T2, pp 10 and 11.

    [88]       See, for example, Transcript, 16 December 2021, pp 52-53.

14. As to social interaction, the Applicant stated that he does not ‘catch up’ with friends and has not done so for a few years[89].  The Applicant stated that he interacted with the community, attending, for example, the supermarket[90] and the chiropractor[91].  The Applicant stated that he would help get items of the supermarket shelves, but only if they were the higher shelves[92].  The Applicant stated that he pushed the shopping trolley around the supermarket and carried a grocery bag after checkout[93].  The Applicant can drive a vehicle, but stated that he has a ‘learners’ licence[94].  The impairments do result in reduced functional capacity, or psychosocial functioning in undertaking social interaction, but it is found that the impairments do not result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, social interaction.   

    [89]       Transcript, 16 December 2021, p 33, lines 10-15.

    [90]       Ibid, p 38, line 20.

    [91]       Ibid, p 25. 

    [92]       Ibid, p 38, lines 24 and 25.

    [93]       Ibid, p 38. 

    [94]       Ibid, p 39, lines 8-10.

15. As to learning, the Applicant stated that he plays video games on a daily basis, which are interactive, involving, for example, a person walking through different environments[95].  The Applicant, as referred to above, was able to understand questions in oral evidence and remember relevant information.  As referred to above, the Applicant stated that he can drive a vehicle and has a ‘learners’ licence[96].  The Applicant completed year 11 at school and then year 12 at TAFE in 2018[97].  It is found that the impairments do not result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, learning.   

    [95]       Ibid, p 32, lines 21-34. 

    [96]       Ibid, p 9, lines 8-10.

    [97]       Ibid, p 29, lines 40-43.

16. As to mobility, the Applicant stated that he can walk for 10-15 minutes and could walk a kilometre[98].  The Applicant stated he can stand up for some 30 minutes before sitting or lying down[99].  The Applicant stated that his ‘mobility is decreasing.  Along with being able to do stuff in general’[100].  The Applicant stated that ‘anything from the neck down is difficult:  washing, cooking, cleaning, doing up shoelaces or anything like that’[101].  When asked about what would happen if the Applicant tried to tie his own shoelaces:  ‘It causes pain throughout the day, because it would take me like three or four minutes to do them … ’.  The Applicant, stated therefore that he has reduced functional capacity as to mobility.  The Applicant did not indicate a “substantially reduced functional capacity to undertake mobility”, in that, for example, he is able to get out of bed, unassisted by another person or device and then take his dog for a walk[102].

    [98]       Ibid, p 24, lines 29-40. 

    [99]       Ibid, p 24, lines 29-40. 

    [100]       Ibid, p 27, lines 5-6. 

    [101]       Ibid, p 24, lines 29-40. 

    [102]       Ibid, p 33, lines 19-24. 

17. As to self-care, the Applicant stated, as referred to above, that he is able to get out of bed without assistance or the use of any equipment[103].  The Applicant stated that he has ‘problems’ sleeping through the night[104].  The Applicant stated that he wakes up continuously and will try to go back to sleep, but then will wake up again within an hour or so[105].  The Applicant stated that he administers his own medications, after brushing his teeth in the mornings[106].  The Applicant stated that he is able to undress and take a shower, without assistance or any particular equipment for undressing[107].  The Applicant stated that he is able to put boxer shorts and pants on by himself, is able to shave, wash his hands and attend a toilet without assistance[108].  It is found that the impairments do not result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, self-care.   

    [103]       Ibid, p 33, lines 30-40.

    [104]       Ibid, p 25 lines 1-12; p 33, lines 40-47.

    [105]       Ibid p 25 lines 7-13.

    [106]       Ibid, p 34, lines 5-8. 

    [107]       Ibid, p 34, line 38. 

    [108]       Ibid, p 35, lines 11-46.

18. Dr Goodwin, Rehabilitation Physician, saw the Applicant on 27 April 2018 at the Metro South Health Persistent Pain Management Service, and referred him for a multi-disciplinary allied health assessment at the Service[109].  However, the records indicate that the Applicant “failed to attend two follow up medical appointments and also his booked allied health assessment” and was discharged from the Service[110].  As recently as September 2020, the Applicant “has declined other MDT [multi-disciplinary therapy] input including pain education”[111]. As to self-management, having regard to the statements of the Applicant referred to above, as to the other activities in paragraph 24(1)(c) of the Act, the Applicant does have a reduced capacity to organise daily life, to plan and make decisions, including the completion of daily tasks such as medical appointments and the management of finances, however it is not (only) the impairments (kyphosis, ‘shallow annular bulge posteriorly at the L5/S1 level without evidence of focal disc herniation or compression of neural structures’ and ‘degenerative changes at the symphysis pubis’) that are substantially reducing the functional capacity, or the psychosocial functioning in undertaking, self-management. As referred to above, the Applicant displayed and articulated a cognitive capacity in understanding questions in oral evidence and remembering relevant information, with the pain relating to the impairments not, in his articulations, substantially reducing his self-management.

    [109]Exhibit 12, Letter by Dr Leah Goodwin (Rehabilitation Physician), 27 April 2018, Tender Bundle, pp 264-266.

    [110]       Exhibit 12, Tender Bundle, pp 263, 279-281.

    [111]Exhibit 12, Tender Bundle p 291. The Applicant offered no explanation in cross-examination: Transcript, 16 December 2021, p 48 line 24-46.

19. Therefore, there is not an indication that the Applicant is only able to participate effectively in communication, social interaction, learning, mobility, self-care and/or self-management with assistive technology, equipment[112] (other than commonly used items such as glasses) or home modifications (rule 5.8(a) of the Rules). In all the circumstances referred to above, the Applicant usually does not require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activities or to perform tasks or actions required to undertake or participate in the activities (rule 5.8(b) of the Rules): the Applicant stated, as referred to above, that he could perform tasks or actions required to undertake or participate in the activities without human assistance or equipment usually. There is not an indication that the Applicant is unable to participate in the activities stated in paragraph 24(1)(c) of the Act or to perform tasks or actions required to undertake or participate in the activities, even with assistive technology, equipment, home modifications or assistance from another person (rule 5.8(c) of the Rules). Therefore rules 5.8(a) to (c) of the Rules do not, respectively, indicate that the impairments of the Applicant result in substantially reduced functional capacity to undertake one or more of the relevant activities.

    [112]       Transcript, 16 December 2021, p 34, line 37 and p 35, line 26.

1. The impairments therefore do not result, according to paragraph 24(1)(c) of the Act, 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.

2. A person meets the disability requirements only if all of the subparagraphs in subsection (1) of section 24 are ‘met’. The Applicant has not met the requirement in paragraph 24(1)(c) of the Act and does not therefore meet the disability requirements in subsection 24(1). The Applicant does not therefore meet the access criteria according to subparagraph 21(1)(c)(i) of the Act, in that, at the time of considering the request, the Applicant does not meet the disability requirements in section 24.

   DECISION

3. The Tribunal affirms the decision under review: paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

.........................[SGD]...........................

Associate

Dated:  25 May 2022

Date of hearing:

16 December 2021 and 10 February 2022

Date final submissions received:

Applicant:

10 March 2022

Appeared in person via video

Counsel for the Respondent:

Mr J. Sproule

Solicitors for the Respondent:

HWL Ebsworth