Smith and National Disability Insurance Agency

[2024] AATA 265

Smith and National Disability Insurance Agency [2024] AATA 265 (27 February 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/1344

Re:Mr Steven Smith

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D Connolly

Date:27 February 2024

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

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

Senior Member D Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether the applicant has a disability - whether conditions are permanent – weight to be given to competing expert opinions – whether there is substantially reduced functional capacity – whether impairment affects capacity for social or economic participation – whether likely to require support under the NDIS for lifetime - decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

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

CASES

Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION

Senior Member D Connolly

27 February 2024

BACKGROUND TO REVIEW

1. Mr Steven Smith (the Applicant), an Aboriginal man, was born in October 1971. He is unemployed, in receipt of a disability support pension (DSP) and lives alone in community housing on the Central Coast, in regional New South Wales.[1] His elderly mother also lives on the Central Coast. He separated in 2013 from his former partner, Lisa, the mother of his son, who is about 16 years old and has autism. Lisa and his son live in Melbourne and the Applicant remains in contact with them.

   [1] JB, 21, Report of Dr Nadeem Anwar, p 159.

2. The Applicant has made at least three requests to become a participant in the National Disability Insurance Scheme (the NDIS), most recently in August 2020. The Applicant has sought to rely on impairments attributable to anxiety, panic attacks, agoraphobia, claustrophobia, depression, cognitive impairment, intellectual disability, lumbar fracture resulting in back pain, mild obstructive sleep apnoea, epilepsy, disequilibrium disorder, chronic episodic vertigo, autism spectrum disorder (ASD).[2] [3]

   [2] T24, Access Request Form, p 108.

   [3] T10, Health Summary Sheet, p 41.

3. On 27 November 2020, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent), decided the Applicant did not meet the access criteria set out in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) because the delegate was not satisfied the Applicant’s impairments were permanent.[4] An internal reviewer confirmed that decision on 9 February 2021. The internal reviewer was satisfied the Applicant has psychosocial, cognitive and physical impairments as the result of anxiety, depression, panic attacks with agoraphobia, claustrophobia, cognitive impairment and lumbar fractures resulting in back pain. She was not satisfied the Applicant had any impairment as the result of his mild obstructive sleep apnoea, hypoxia, epilepsy, disequilibrium disorder, chronic episodic vertigo or ASD. She was satisfied the Applicant’s cognitive impairment was permanent but was not satisfied his psychosocial and physical impairments were permanent. She was not satisfied any of the Applicant’s impairments resulted in a substantially reduced functional capacity.[5]

   [4] T21, Access not met letter, p 90.

   [5] T1A, Internal review decision, pp 7 – 15.

4. On 5 March 2021, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision to refuse his request for access to the NDIS under the provisions set out in the Act.[6]

   [6] T1, Application for review of decision, p 4.

5. The parties filed a joint bundle of relevant documents on 9 October 2023 (JB). The Tribunal hearing was held, by videoconference, on 10, 11 and 27 October 2023.

   LEGISLATION

   The access criteria

6. To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

   (1)A person meets the access criteria if:

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

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

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

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

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

7. There is no dispute the Applicant satisfies the age and residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the Act.

8. Section 24 of the Act states:

   (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.

9. If the Applicant does not meet the disability requirements, I will consider whether he meets the early intervention requirements set out in section 25 of the Act.

10. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.

11. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[7] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[8]

    [7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

    [8] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>

    I note in Mulligan[9] Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[10] The Full Federal Court in Foster explained the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[11]

    [9] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).

    [10] Ibid at [55].

    [11] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].

12. The concept of “impairment” is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[12] Pain is not an “impairment” in itself,[13] but pain might be such that it limits particular bodily functions and therefore constitutes an “impairment”.[14]

    [12] Mulligan at [51].

    [13] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47].

    [14] Ibid at [48].

    ISSUES

13. The Respondent in its opening submissions at the hearing “now concedes that section 24(1)(a) is satisfied in respect of impairments associated with epilepsy and disequilibrium disorder.”[15] However the Respondent has submitted that he does not have a disability from his other conditions; namely, depression, moderate depressive disorder, adjustment disorder, sleep apnoea, cognitive impairment, chronic episodic vertigo and autism spectrum disorder.[16]

    [15] Transcript, p 7.

    [16] Respondent’s Statement of Facts Issues and Contentions (RSFIC) at [27] – [37], [40] – [41], [45] – [48].

14. Having regard to evidence, discussed in more detail below, I agree that the Applicant has a disability that is attributable to impairments. Therefore paragraph 24(1)(a) of the Act is met. However while the Applicant already meets paragraph 24(1)(a), I am of the view when considering how the Applicant meets this provision, the impairment or impairments need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced functional capacity (paragraph 24(1)(c)) operate not on the concept of “conditions”, but on the concept of “impairment”, which is generally understood to involve the loss of, or damage to, a physical, sensory or mental function.[17] Therefore I will make findings about the nature of the Applicant’s impairments.

    [17] Mulligan at [51].

15. The Respondent has submitted that none of the Applicant’s impairments can be considered permanent within the meaning of paragraph 24(1)(b) of the Act and rules 5.4 and 5.6 of the Access Rules.[18] I will consider whether the Applicant’s impairment(s) are permanent such that paragraph 24(1)(b) of the Act is met.

    [18] RSFIC at [49] – [64].

16. The Respondent has submitted the Applicant has not demonstrated a substantially reduced functional capacity in any of the activities set out in subparagraphs 24(1)(c)(i)-(vi) and so does not meet paragraph 24(1)(c) of the Act.[19] If I find any of the Applicant’s impairments are permanent, I will consider whether the Applicant’s permanent impairment(s) result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management.

    [19] Ibid at [65] – [70], Respondent’s Closing Submissions at [56] – [150].

17. The Respondent has submitted that paragraph 24(1)(d) of the Act cannot be met because the Applicant has no permanent impairments.[20] If I find the Applicant meets paragraphs 24(1)(b) and (c), I will consider whether I am satisfied his permanent impairment(s) affect his capacity for social or economic participation.

    [20] RSFIC at [73] – [74].

18. The Respondent has also submitted that paragraph 24(1)(e) of the Act is not met because the Applicant’s impairments are not permanent and do not result in substantially reduced functional capacity.[21] If I find paragraph 24(1)(d) of the Act is met, I will consider whether I am satisfied the Applicant is likely to require support under the NDIS for his lifetime.

    [21] Ibid at [75] – [76].

19. If I am not satisfied the Applicant meets the disability requirements, I will consider whether he meets the early intervention requirements set out in section 25 of the Act. The Respondent has submitted that the Applicant does not meet the early intervention requirements because none of his impairments are permanent for the purpose of paragraph 25(1)(a), and the evidence does not demonstrate that provision of early intervention supports would likely have a significant impact on the course taken by the Applicant's impairments, or have any of the benefits identified in paragraph 25(1)(c)(i) – (iv) of the Act.[22]

    [22] Ibid at [77] – [78].

    EVIDENCE BEFORE THE TRIBUNAL

20. I have taken into account all the evidence filed by the parties, including documents provided before and after the hearing, and the oral evidence given at the hearing. The Tribunal heard oral evidence from the Applicant, and expert witnesses who assessed the Applicant and prepared reports at the Respondent’s request; Ms Annarie Hildebrand, Occupational Therapist, Dr Travis Wearne, Clinical Neuropsychologist, and Dr Ron Granot, Neurologist.

21. Included in Ms Hildebrand’s assessment is information she obtained from the Applicant’s former partner, Lisa. While Lisa did not give oral evidence at the hearing, no issue was raised as to whether her information is reliable. Having considered the information she provided, in the context of all the other material before the Tribunal, I am satisfied it is reliable and I am of the view it is relevant to my consideration of whether the Applicant meets the disability requirements.

22. The Applicant has numerous medical and psychological conditions. He has provided several medical reports, many of which are now quite old but give the matter context and are still relevant to my consideration of whether the Applicant has a disability attributable to any of the impairments set out in paragraph 24(1)(a). There is also summoned medical evidence before me, referred to by the parties. The following materials assist in understanding the Applicant’s circumstances, impairments and lived experience.

    Clinical notes – birth records

23. The Applicant has provided the clinical notes from his birth records which record that he was born with the “cord around neck loose”, he was “flat” at birth and that “hypoxic cerebral damage seems likely, although prognosis can’t be assessed at present”. [23]

    [23] JB, 14, Applicant’s birth records, pp 33 – 52.

    Dr James Stegeman – radiology reports regarding vertebral crush fracture

24. Dr Stegeman reported on 3 and 4 May 2013 that the Applicant suffered, post fall, a crush fracture of the L5 vertebra and suspected “crush fractures involving the T12 L-1 L-2 vertebrae, also L5 and potentially L4 vertebrae. The fractures through L1 and L5 vertebrae involve 2 columns and hence are potentially unstable injuries.”[24]

    [24] JB, 1, Reports of Dr James Stegemen, pp 1 – 6; JB, 3, Report of Dr James Stegemen, p 8.

25. Other radiological reports were provided confirming Dr Stegeman’s findings.[25]

    [25] JB, 6, Report of Dr Dr James Lawson, p 15; JB, 7, Report of Dr Harold Fabrikant, p 16; Report of Dr Judith Tan, p 17.

    Discharge summary after admission for post seizure vertebral fracture

26. Dr Craig Timms reported on 11 May 2013 that the Applicant was admitted to hospital on 5 May 2013 suffering a wound infection over an IV cannula site after being admitted for neurological care post seizure vertebral fracture, with cellulitis near the cannula site. He reported that the Applicant had a history of epilepsy and presented with back pain after an unwitnessed seizure. He had been taking Tegretol and Keppra but stopped Tegretol because he ran out of scripts. Dr Timms reported a slow rehabilitation due to pain.[26]

    [26] JB, 5, Discharge Summary of Dr Craig Timms, pp 11 – 14.

    Dr Youssef Malek, psychiatrist

27. The Applicant was referred to a psychiatrist in 2009 for assessment and management. At the time he was receiving Abstudy to complete a Bachelor of Aboriginal Studies but he was struggling with those studies. Dr Malek reported in October 2009 that the Applicant presented with symptoms of anxiety and panic attacks with fears of going out to shopping centres, escalators and heights. His symptoms affected his ability to socialise and work. He had an anger problem, short temper and a low tolerance for people. He reported having had the symptoms since 1997 and having seen a counsellor between 2005 and 2008. [27] Dr Malek reported the Applicant’s epilepsy was under control. He diagnosed panic attacks with agoraphobia. He recommended an SSRI antidepressant but noted the Applicant would need to take a lower dose to avoid a possible side effect of a lower seizure threshold. He recorded that the Applicant was not keen to take medication.[28] He also recommended the Applicant see a psychologist to assist with coping strategies for anxiety symptoms and to provide support and counselling for agoraphobia. He noted support from the Aboriginal community would be of benefit to the Applicant.[29]

    [27] T3, Letter from Dr Youssef Malek, p 31.

    [28] Ibid, p 32.

    [29] Ibid, p 33.

    Dr Martin Baker, clinical psychologist

28. The Tribunal has been provided with part of a report by Dr Baker, who the Applicant consulted in 2010.[30] Dr Baker reported that the Applicant had difficulties expressing himself and in picking up cognitive behaviour therapy (CBT) concepts. A formal IQ test was undertaken by a postgraduate student, in which the Applicant scored 93, indicating intelligence in the low average to average range. However, Dr Baker had hypothesised that the Applicant’s IQ would be lower than normal, in contrast to his results. Testing displayed a relative weakness in verbally orientated tasks involving verbal comprehension and reasoning. During the Applicant’s fourth and fifth sessions, an attempt was made to deliver a CBT model of psychological treatments for the Applicant’s panic disorder and agoraphobic avoidance that he used as a way of coping with his anxiety. Dr Baker reported that the Applicant appeared not to understand. He seemed to defend his coping actions and resisted suggestions for managing his anxiety. Dr Baker formed the view his maladaptive coping behaviours could be responsible for the increase in frequency and intensity of his anxiety symptoms. Dr Baker concluded that future CBT sessions were highly unlikely to be fruitful or to result in significant progress for the Applicant. He noted there was little consistency in the Applicant’s presentation and that many of his anxiety symptoms were situation/context specific and not consistent over time. He concluded that this made treating the Applicant psychologically even harder given the unpredictability.[31]

    [30] T4, Letter from Dr Martin Baker, pp 37 - 38.

    [31] Ibid, p 38.

    Mr Justin Court, psychologist

29. Mr Court reported on 1 September 2015 that the Applicant had been referred to him by his general practitioner (GP), Dr Ling.[32] Mr Court reported that the Applicant presented with anxiety and depressive symptoms associated with domestic conflict and poor physical and mental health over a nine-year period. The Applicant had reported experiencing a cycle of ongoing rumination resulting in anxiety and agoraphobia. The Applicant attended six sessions of treatment and had been fully compliant. The treatment involved CBT and Acceptance and Commitment Therapy (ACT). While the Applicant had shown some insight into treatment, he was somewhat limited by apparent cognitive limitations, specifically concentration and an inability to process and retain new information. Mr Court reported that the Applicant was under significant stress associated with his relationships and living situation. In addition to regular psychological therapy, the Applicant was accessing support services at Mingaletta,[33]  attending men’s groups weekly and volunteering at Mingaletta three days a week. Mr Court reported the Applicant’s condition to be chronic in nature and his prognosis was poor due to significant barriers mentioned above.[34]

    [32] T5, Letter from Mr Justin Court, p 35.

    [33] Mingaletta is an Aboriginal Community based organisation situated on the Central Coast of NSW

    [34] T5, Letter from Mr Justin Court, p 35.

1. The Applicant was once again referred to Mr Court for treatment in March 2016. The Applicant provided a letter from Mr Court dated 5 April 2016 in which Mr Court reported the Applicant had described a confluence of factors that contribute to his anxiety, including coping with poor health, sleeping difficulties, vertigo, epilepsy and domestic stressors. Despite previous psychological treatment in 2015, he continued to struggle to cope with significant levels of stress associated with his relationships and living situation. He was struggling to find and finance his own accommodation. In addition to regular psychological therapy, he continued to access support services at Mingaletta, attend men’s groups weekly and volunteer. He was continuing to work to increase his level of activity. Mr Court reported that while there was no reason to believe that treatment could not improve the Applicant’s overall levels of well-being, he had formed the view it was unlikely to resolve his anxiety and agoraphobia due to limitations in the Applicant’s learning capabilities, and for this reason his condition was likely to continue.[35]

   [35] T8, Letter from Mr Justin Court, p 39.

   Dr Warren Ling, general practitioner

2. On 11 November 2015 Dr Ling reported that the Applicant had suffered anxiety and panic attacks since 1995 but it was not diagnosed until 2005. He was receiving regular psychological therapy but debilitating symptoms of anxiety were still occurring daily, preventing him from performing any normal work duties. Dr Ling was of the view his anxiety/panic is a permanent condition.[36]

   [36] T6, Letter from Dr Warren Ling, p 37.

3. On 2 March 2016 Dr Ling reported that the Applicant was first diagnosed with epilepsy in 1972 and had been prescribed a variety of anticonvulsant medications but continued to have petit mal convulsions on a daily basis. Dr Ling formed the view his epilepsy was a permanent condition.[37]

   [37] T7, Letter from Dr Warren Ling, p 38.

4. Dr Ling also reported that the Applicant had been suffering episodic vertigo since 2005, on a daily basis. He considered this to be a permanent condition rendering him unable to undertake consistent work duties. Dr Ling referred to the seizure in 2013 resulting in the fall and fractured lumbar vertebrae. He stated the Applicant had experienced recurring pain since, which restricted his ability to sit or stand for extended periods.[38]

   [38] Ibid.

5. On 1 February 2017 Dr Ling provided a report indicating the following. With respect to epilepsy, the Applicant’s petit mal convulsions cause impairment of conscious state throughout the day which renders it difficult for the Applicant to complete daily tasks and prevents him from driving a motor vehicle. His anxiety and panic attacks contribute to severe difficulties with interpersonal relationships, decision-making and completing daily tasks. With respect to the lumbar vertebrae fracture, the Applicant underwent an intensive course of physiotherapy in 2016 which did not result in significant improvement. In his view the condition was stabilised and permanent.[39]

   [39] T9, Letter from Dr Warren Ling, p 40.

   Dr Patricia Caruana, neurologist

6. Dr Caruana reported that the Applicant was reviewed at the neurology outpatient clinic at Gosford District Hospital on 11 July 2017. He presented with ongoing disequilibrium, on uneven surfaces and when crossing the street. His last generalised seizure was in 2013. At the time he was taking “Levetiracetam (Keppra), 500 mg bd and Fenofibrate, 145 mg daily (which he often forgets)”. It was recommended that he commence a trial of another medication to alleviate his disequilibrium but he did not do this as he was worried about the possible side-effects. He reported to Dr Caruana frequent “absence seizures”. He resisted having a Dix-Hallpike manoeuvre and head impulse tests because of his back pain.[40]

   [40] T11, Letter from Dr Patrocoa Caruana, pp 43 – 44.

7. Dr Caruana concluded the Applicant has seizure disorder which may be focal onset seizures with secondary generalisation or primarily generalised seizures. He did not consent to undergo an MRI due to his anxiety and back pain. She discussed with the Applicant medication that might assist but he did not wish to trial other drugs because of their side effects. Dr Caruana concluded that the Applicant’s disequilibrium could be caused by subclinical seizures, vertigo, medication side-effects or anxiety. She thought he would benefit from vestibular function studies but he could not afford them. She recommended he consider trialling an SSRI given his anxiety and phobias.[41]

   [41] Ibid.

8. In a letter to the Applicant dated 26 September 2017,[42] Dr Caruana stated “[w]e would like to increase your Keppra to 1 g twice daily. Take 1 x 500 mg table in the morning and 2 x 500 mg tablets at night for one week. Then take 2 x 500 mg tablets twice daily. Observe your mood and see your GP regularly. We believe that your episodes of disequilibrium will disappear on this dose”.

   [42] JB, 28, Letter from Dr Patricia Caruana, p 249.

   Dr Khan, Yerin Aboriginal Health Services and Mr Stephen Wigley, clinical psychologist

9. The Applicant provided a referral report from Dr M Khan to Neuropsychology, Gosford Hospital, dated 28 February 2018, in which it was reported that the Applicant was suffering from anxiety and panic attacks and suggested he may have unrecognised autism.[43]

   [43] T12, Letter from Dr M A A Khan, pp 45 – 46.

10. On 23 July 2018 Mr Wigley, senior clinical psychologist, reported that the Applicant had been assessed on 16 July 2018.[44] Mr Wrigley noted the Applicant was considered to have had a learning disorder, a mild intellectual disability and unrecognised autism. The Applicant reported to Mr Wigley lapses of concentration or daydreams where his mind wandered off.[45] Mr Wigley reported that the Applicant seemed reluctant to follow the psychological treatment recommended and, rather, seemed to defend maladaptive, idiosyncratic coping actions. Mr Wigley reported however that the Applicant was compliant and appeared to try hard in the tests. He was oriented to time, place and personal detail. His ability to concentrate was average to high average. His auditory verbal immediate recall was low average. His ability to learn the word list of the trials was borderline impaired to low average.

    [44] T13, Letter from Stephen Wigley, p 47.

    [45] Ibid.

11. Mr Wigley concluded that the Applicant demonstrated no cognitive impairment but had weakness in crystallised intelligence. His main problem appeared to be the frequency of his panic attacks, his inability to control them and the difficulty in distinguishing them from manifestations of epilepsy or vestibular pathology. [46]

    [46] Ibid, pp 48 – 49.

    AAT Reasons for Decision – Applicant’s disability support pension application

12. The Applicant provided a copy of an AAT decision dated 14 June 2019 in which the Tribunal (differently constituted) found that the Applicant satisfied the requirements for DSP and had done so since September 2016 (DSP Decision).[47] I note the AAT recorded that the Applicant had stated “his panic attacks happen ‘multiple times a day’, his symptoms include shaking, blurred vision and dizziness. These panic attacks can be triggered by movement, such as walking or going up a lift, and ‘just come on’.”[48] The AAT was satisfied, based on the evidence of Dr Malek, Dr Baker, and Mr Court that the Applicant’s mental health condition was fully diagnosed, treated and stabilised. I note that the legislative requirements for DSP are different to the access criteria and I am not bound by the DSP Decision.

    [47] JB, 9, Decision and Reasons for Decision from Administrative Appeals Tribunal regarding claim for disability support pension, 14 June 2019, pp 18 – 27.

    [48] Ibid, p 23.

    Ms Miriam Seifert, occupational therapist

13. Yerin Aboriginal Health Services referred the Applicant to Ms Seifert for an occupational therapy assessment which was completed in August 2020.[49] Ms Seifert completed a WHODAS 2.0 (World Health Organisation Disability Assessment Schedule), and the Applicant’s scores indicated moderate disability. She noted the Applicant’s mother was assisting him with cleaning and household tasks. He was also receiving assistance through HASI (Home and Accommodation Support Initiative) for transport to appointments and shopping. [50] He had been attending New Horizons[51] and engaging in social activities with other men. He was walking in his local community and using a home gym set but was struggling with motivation. [52]

    [49] T16, Report from Ms Miriam Seifert, p 65.

    [50] Ibid, p 66.

    [51] A support service on the Central Coast

    [52] T16, Report from Ms Miriam Seifert, p 66.

14. Ms Seifert recorded that the Applicant was able to mobilise independently, without aids, up and down stairs. However he reported difficulty mobilising on the interior staircase because of concern that he will fall backwards. Ms Seifert observed the Applicant traverse those stairs slowly and carefully. She was concerned that he would be unable to descend the staircase quickly in the case of an emergency.[53] The Applicant reported to her that his mobility and balance fluctuate depending on his level of back pain and vertigo.[54]

    [53] Ibid.

    [54] Ibid, p 67.

15. Ms Seifert observed the Applicant transfer independently from a chair, his bed and the toilet. He was independent in feeding. He reported dizziness when showering. He completed bathing tasks by holding onto the frame of the shower recess to steady himself.  He was independent in dressing/grooming, toileting and medication management.[55]

    [55] Ibid, pp 67 – 68.

16. Ms Seifert noted the Applicant reported difficulty in household management and cleaning tasks due to vertigo and back pain. He could vacuum and mop but found it difficult to clean the toilet and shower recess due to difficulty kneeling and standing up from a kneeling position. He reported difficulty with cooking meals as he is unable to stand for long periods. He cooked in short bursts to manage fatigue and back pain. He was independent in the use of cooking utensils and appropriately planned, sequenced and cooked familiar dishes.[56]

    [56] Ibid, p 68.

17. Ms Seifert reported that the Applicant completed shopping tasks independently. He walked to his local supermarket to complete light shopping. He could independently catch public transport. However HASI assisted him with transport to his appointments.[57]

    [57] Ibid.

18. Ms Seifert reported that the Applicant was able to engage appropriately in conversations and provide relevant answers and details. He reported having regular seizure activity, significant anxiety and panic attacks which slowed processing of information.[58]

    [58] Ibid.

19. Ms Seifert reported on 25 November 2020 recommendations and specifications for home modification, the installation of rails to support the Applicant when traversing stairs and showering.[59] She noted the Applicant had difficulty safely completing toilet transfers due to back pain and stiffness, and difficulty traversing interior stairs due to vertigo and back pain.[60]

    [59] T20, Report of Ms Miriam Seifert, pp 86 – 89.

    [60] Ibid, p 85.

    Dr Jamie Rees, general practitioner

20. In August 2020, in the access application form, Dr Rees recorded the Applicant’s disabilities as agoraphobia, anxiety/depression, intellectual disability, epilepsy, chronic back pain and disequilibrium disorder.[61] He reported that the Applicant requires assistance with community transport because he is unable to drive, with communication regarding more complex processes, and assistance from other persons to socially interact because of his agoraphobia and tendency to self-isolate.[62] He reported that the Applicant requires prompting to shower and handrails and a seat due to dizziness when showering.[63]

    [61] T24, Access Request Form, p 108.

    [62] Ibid, p 109.

    [63] Ibid, p 110.

    Mr Teck Wai Mah, psychologist

21. Mr Mah reported on 22 September 2020 that he assessed the Applicant and his results indicated his general adaptive functioning fell within the low range.[64] His conceptual and social domains results were low and his practical domain results were below average. Mr Mah reported that the Applicant’s results mean in most areas of daily living, he only does the activity sometimes or sometimes requires help or reminders to perform the activity. At the time the Applicant was receiving drop-in support from his mother.[65]

    [64] T19, Report of Mr Teck Wai Mah, pp 81 – 82.

    [65] Ibid.

22. Mr Mah noted that the Applicant’s results seemed lower than his intellectual functioning might suggest. He thought this could be attributed to his medical difficulties including his mental health. The results suggested the Applicant needs periodic support assistance and advice particularly in the areas of leisure, self-direction/emotional regulation, taking care of his home, community access and social participation. He concluded the Applicant would benefit from appropriate therapeutic intervention for his mental health concerns.[66]

    [66] Ibid, p 82.

    Ms Annarie Hildebrand, occupational therapist

23. Ms Hildebrand assessed the Applicant on 1 June 2022, at the Respondent’s request, and reported the following.[67] Over a two hour period, she observed the Applicant perform selected routine daily activities and she spoke by telephone with the Applicant’s former partner, Lisa. She undertook assessments: WHODAS 2.0; Lawton’s Activities of Daily Living Assessment; Depression, Anxiety and Stress Scale – 21 (DASS21) with the Applicant; and Abbreviate Life Skills Profile (LSP-16) completed with Lisa via telephone.[68]

    [67] JB, 17, Report of Ms Annarie Hildebrand, pp 70 – 112.

    [68] Ibid, pp 73 – 74.

24. The Applicant reported that he was being supported by his elderly mother because he could not stand for too long. He spent most of his time at home. He was in receipt of assistance with transport and shopping funded through HASI.[69] Prior to the Covid pandemic he attended a fortnightly men’s group provided through Yerin, an Aboriginal organisation but had stopped attending because of Covid and flood damage and had not reconnected. [70]

    [69] Ibid, p 77.

    [70] Ibid, p 74.

25. The Applicant told Ms Hildebrand that he was arranging a formal assessment/diagnosis for autism because of his issues with interpreting social cues, forming and maintaining friendships, and ritualistic behaviours. His son has ASD.[71] He reported feeling unbalanced when walking, negotiating stairs and on uneven surfaces, walking where there are people and having to ask people to move so that he can pass. He reported avoiding accessing the community as he feels unsafe to travel by himself,[72] being socially isolated and not having any close friends.[73]

    [71] Ibid.

    [72] Ibid, p 75.

    [73] Ibid, p 77.

26. The Applicant reported that his last grand mal seizure was in 2013, but he has regular episodes of ‘daydreaming’. He believed his epilepsy was well managed by Keppra.

27. With respect to his spinal fractures, the Applicant reported he continues to experience occasional pain which “comes and goes” depending on the day and the activity. Pain is aggravated by walking a lot, sitting the wrong way, and repetitive lifting of more than 15 kg. He lacks confidence to negotiate stairs and uneven flooring, which makes his vertigo worse.

28. With respect to anxiety and depression, the Applicant reported he has panic attacks which can happen at any time and are triggered by shopping and when people are walking slowly in front of him, as he struggles to get around them. He feels unsteady when walking across open spaces. He feels down at times and tries to distract himself by changing his focus.

29. Ms Hildebrand reported that the Applicant lived in a two-storey town house. He required some encouragement to traverse the stairs to the first floor because he did not feel confident due to his vertigo and fear of an epileptic seizure whilst on the stairs. He finds the uneven surfaces contribute to vertigo and unsteadiness. He moved his bedroom to the ground floor, in the open plan lounge area to avoid the stairs. He negotiated the stairs at a slow pace and held onto the banister rail.[74]

    [74] Ibid, pp 78 – 79.

30. With respect to cognitive functioning, Ms Hildebrand reported that the Applicant was orientated to time, place, and person. He was prepared for the assessment and was willing to answer questions and demonstrate functional tasks as requested. He reported that sometimes his mind goes blank. He demonstrated the capacity to read and write independently but requested clarification of questions while completing assessment forms. He demonstrated the ability to stay on task and complete activities within a reasonable time. He was able to concentrate and participate in the assessment but required redirection to stay on topic. Lisa reported that he wants to be organised but he gets distracted.

31. Ms Hildebrand formed the view the Applicant is able to organise, plan and make decisions regarding his daily routine but he lacked some insight with respect to the rehousing process and the impact his behaviours have on others. She reported rigid thinking, and lack of insight and social awareness.[75] Lisa reported that he becomes irritable and verbally aggressive to re-enforce his way of doing things and that his behaviours can be strange and difficult especially when he has to start a conversation. She described him as “socially awkward”, that he would say inappropriate things, be very blunt in expressing his opinion, and speak in one volume voice regardless of the circumstances. He gets frustrated and starts to yell, swear, and walk away, and he is emotionally aggressive. He is easily upset when things do not go as planned or expected.  He had hit Lisa during the relationship.[76]

    [75] Ibid, pp 81 – 82.

    [76] Ibid, p 82.

32. Ms Hildebrand reported that the Applicant presented with appropriate behaviours and demonstrated adequate and appropriate frustration tolerances.[77] He was able to state and describe his functional capacity and needs. He usually “maps out” his day when planning to access the community as a technique to manage his anxiety.[78] However he reported high levels of anxiety, panic and vertigo when accessing the community, crossing roads or open spaces, negotiating crowds of people and stairs.[79] He stays at home for a day after a panic attack. He feels down and struggles to motivate himself to use his gym equipment. Despite this, he reported not needing to consult a psychologist or psychiatrist.[80]

    [77] Ibid.

    [78] Ibid.

    [79] Ibid, p 83.

    [80] Ibid.

33. The Applicant reported that back pain wakes him at night but he is able to settle after changing position.[81] He is able to move his upper and lower limbs. He was observed bending, squatting, kneeling and lifting 15 kg from the floor to head level. He reported increased vertigo when having to cross open spaces. [82] Ms Hildebrand observed that he made several attempts to cross the road, appeared unsteady and used gross motor movements to maintain his balance. He advised that he tries to walk close to walls in shopping centres and stated, “It puts me off when people walk across in front of you. It makes me feel dizzy and disorientated.” He reported increased vertigo with prolonged standing and was observed to sway from side to side to maintain his equilibrium.[83] He declined balancing on one leg.[84]

    [81] Ibid, p 84.

    [82] Ibid, p 85.

    [83] Ibid, p 84.

    [84] Ibid, p 85.

34. With respect to showering, Ms Hildebrand reported that the Applicant advised that steam and hot water can contribute to him feeling unsteady.[85] Lisa reported the Applicant would often not shower for 3-4 days, that he can be odorous and he requires prompting to take a shower.[86]

    [85] Ibid, p 87.

    [86] Ibid.

35. The Applicant reported that he is able to prepare meals in short bursts rather than standing for prolonged periods as this aggravates his lower back pain.[87] He demonstrated vacuuming a small area and loading and unloading his washing machine.[88] He can hang out his clothes. When shopping he hangs onto the shopping trolley for support and will only do small shops that he can carry onto the bus. At the time of the assessment, HASI was providing fortnightly support with shopping.[89]

    [87] Ibid, p 89.

    [88] Ibid, pp 89 – 90.

    [89] Ibid, p 91.

1. The Applicant reported not owning a car or having a driver’s licence. He uses buses or HASI transport assistance to access the community. In Ms Hildebrand’s view he demonstrated difficulty with walking to his local bus stop, waiting at the road to cross, crossing roads and appeared unsteady and at risk of falling.[90] He reported experiencing significant difficulty accessing public transport to do his shopping and increased anxiety and unsteadiness when accessing the community. He advised he often prefers to stay home rather than go out.[91]

   [90] Ibid.

   [91] Ibid, p 90.

2. Ms Hildebrand reported that the Applicant’s assessment results indicate moderate difficulty with cognition, mild difficulty with mobility, no difficulty with self-care, moderate difficulty with getting along with people, moderate difficulty with participation in society and severe difficulty with life activities. In her view his scores indicate, with his current level of support, he experiences difficulty with domains related to cognition, mobility, getting along with people, life activities and participation in society.[92] She formed the view he requires increased support to improve his quality of living as he experiences significant difficulty with high levels of anxiety and vertigo.[93]

   [92] Ibid, pp 92 – 93.

   [93] Ibid, p 93.

3. Ms Hildebrand reported that the Applicant’s Depression, Anxiety and Stress Scale results indicate moderately severe depression and anxiety and mildly severe stress.[94]

   [94] Ibid.

4. Ms Hildebrand reported that the Applicant’s results for the Lawton’s Activities of Daily Living Assessment demonstrate his need for supported independent living funding, as assistance is required with shopping, housekeeping, and food preparation.[95]

   [95] Ibid, pp 94 – 95.

5. With respect to the Applicant’s results in the Abbreviated Life Skills Profile, completed by Lisa, Ms Hildebrand reported that the results reflect a moderately high level of disability and requiring assistance with activities of daily living and social participation.[96]

   [96] Ibid, pp 95 – 96.

6. Ms Hildebrand formed the view the Applicant needs high levels of guidance and supervision assistance to access the community, moderate levels of supervision and guidance required with problem solving, managing anxiety and mood, and social behaviours and facilitating social interaction.[97] He requires assistance to access public transport and the community safely and independently,[98] and support to re-engage with social support groups.[99]

   [97] Ibid, p 86.

   [98] Ibid, p 91.

   [99] Ibid, p 92.

7. Ms Hildebrand concluded that the Applicant’s results indicate he requires support for successful community participation and he will require ongoing funding for a support worker to ensure that he has the necessary support to engage in community and activities.[100] She concluded that, due to the Applicant’s level of function, his functional limitations, and the impact of disabilities on his capacity for completing daily activities, he requires capacity building supports to improve and increase his functional independence, to improve his emotional regulation, and to receive psychological support to increase capacity to care for his emotional and physical health and engagement with others. She formed the view, with the correct level of support and services, he has the capacity to improve and maintain his level of participation and function across all areas.[101]

   [100] Ibid, p 96.

   [101] Ibid, p 109.

   Dr Bill O’Brien, neurologist

8. Dr Bill O’Brien, who has been the Applicant’s treating neurologist since at least 2017, assessed the Applicant regarding his non-specific disequilibrium sensation on 13 March 2018.[102] He reported that a vestibular function test was conducted in 2016 revealing mild hearing loss but there was no evidence of neurological concerns. The Applicant’s head impulse test, Roberg’s test and Unterberg’s test were all negative. He was intolerant of a caloric test and would not have the Dix-Hallpike manoeuvre due to back pain. He was not receptive to a brain MRI due to claustrophobia and back pain. Dr O’Brien indicated the Applicant’s ongoing disequilibrium was largely related to his anxiety and panic attacks. He recommended antidepressant medication to alleviate his symptoms.[103]

   [102] JB, 28, Letter from Dr Bill O’Brien, p 242.

   [103] Ibid, p 243.

   Dr Ron Granot, neurologist

9. On 1 July 2022 Dr Granot assessed the Applicant at the Respondent’s request.[104] The assessment was undertaken by video, the Applicant being on his mobile phone. Dr Granot reported observing the Applicant walk normally with normal eye movements.[105]

   [104] JB, 19, Report of Dr Ron Granot, p 124.

   [105] Ibid, p 137.

10. Dr Granot took into account bilateral hearing loss, no evidence of acoustic nerve or brainstem auditory pathway lesions, and the recommendation the Applicant trial Serc.[106]  He observed that the Applicant was able to communicate verbally coherently and factually. He noted the Applicant described that at times his mind goes blank but it is different to a seizure.[107]  

    [106] Ibid, p 139.

    [107] Ibid, p 135.

11. With respect to his back pain, the Applicant reported to Dr Granot major pain after the 2013 seizure, which is highly variable as he may be pain-free for some weeks. In the month prior to the assessment, he had pain on one or two occasions, lasting two or three hours and improving with rest. The Applicant reported physiotherapy helps but only temporarily.[108]

    [108] Ibid, pp 135 – 136.

12. With respect to epilepsy, the Applicant reported that he was seizure free from 1993 to 2013 and he has had no further generalised seizures since 2013. However he is aware of a lot of little seizures, when his mind wanders and he loses awareness for one to three minutes.[109]

    [109] Ibid, p 136.

13. With respect to disequilibrium disorder and vertigo, the Applicant reported the condition starting in the 1990s and was attributed to Tegretol and Epilim. He then switched to Keppra around 2012 to 2013. He has had vertigo when lying or rolling in bed. He was able to walk on the flat but vertigo was worse with head movements.[110]

    [110] Ibid.

14. With respect to self-care, the Applicant reported that dizziness can occur when dressing and showering. He has a support worker who takes him shopping. He does not cook apart from preparing ready-made meals. He avoids preparation of food due to dizziness. He avoids using too much cutlery or crockery to avoid washing up the same reason.[111]

    [111] Ibid.

15. Dr Granot formed the opinion that, with respect to any cognitive condition, the psychiatric disorders were the primary issue and that this was beyond the scope of his assessment. He noted the Applicant performed well during the interview and was cooperative. He noted the Applicant had worked in the past and attended interviews, albeit not successfully of late. He found the Applicant’s deficits are permanent, being perinatal in origin, and not amenable to intervention but it remains possible that retraining may improve his functional level.[112]

    [112] Ibid, p 138.

16. With respect to epilepsy, Dr Granot noted the Applicant asserts that the ongoing, daily, brief episodes of altered alertness are compatible with minor seizures. He is of the view the epilepsy is undertreated and a higher dose of therapy is appropriate, as proposed in 2017. While his epilepsy is not curable, a higher dose should be able to control his symptoms.[113]

    [113] Ibid.

17. With respect to disequilibrium, Dr Granot was of the view it was unclear diagnostically. He noted the Applicant did not have the caloric test in 2017 and had not performed the Dix-Hallpike manoeuvre due to back pain. Therefore the condition remained undiagnosed despite its long duration. He noted the Applicant described it as being related to head movement and denied symptoms in the absence of movement. He considered it may be benign positional vertigo which can be cured with an appropriate head repositioning manoeuvre, or treatment, such as Serc. In the absence of a diagnosis or therapeutic trials, Dr Granot was not confident of the condition nor of it being permanent. He recommended appropriate treatment be undertaken which could be accessed through the public health outpatient system as it may improve the quality of the Applicant’s life substantially.[114]

    [114] Ibid, p 139.

18. With respect to back pain, Dr Granot noted the Applicant had reported that the pain is now only intermittent, with no major functional impact.[115] He noted the Applicant had undergone physiotherapy review and analgesia and did not need further therapy for his back.[116]

    [115] Ibid.

    [116] Ibid, p 141.

19. Dr Granot formed the view the Applicant’s cognitive function was within normal range. His epilepsy does cause brief impairment but is not permanent as it is undertreated. His back pain is of mild impact. His disequilibrium seems of moderate functional impairment however he was unsure that it was permanent because of incomplete diagnostic workup and incomplete therapeutic trials.[117] He believed a higher dose of Keppra would likely be effective in resolving the petit mal seizures.[118]

    [117] Ibid, p 142.

    [118] Ibid, p 143.

20. With respect to communication and social interaction, Dr Granot was of the view the Applicant communicates with his carer, family and the general public and there is no impairment in his ability to communicate.[119] With respect to learning, he noted no major cognitive deficit though some degree of learning impairment compared to his peers.[120] He opined that the Applicant’s functional capacity in learning new things was low normal or borderline. However his memory was within the normal range.[121]

    [119] Ibid, p 144.

    [120] Ibid.

    [121] Ibid, p 145.

21. Dr Granot opined that the Applicant was independent in mobility, does not require aids, has no impairment in self-care activities and his discussions with the Applicant indicated he remains independent in terms of his financial and executive tasks. From a neurological perspective there is no need for functional aids assistance.[122]

    [122] Ibid, pp 145 – 146.

22. Dr Granot was asked to clarify his comments that the Applicant’s deficits are permanent being perinatal in origin. On 24 July 2023 Dr Granot confirmed that he was referring to cognitive deficit, but this is more likely a low normal result rather than a deficit per se and is perinatal, long standing and has not caused impairment previously.[123]

    [123] JB, 26, Email chain seeking clarification regarding report prepared by Dr Granot, 216.

    Dr Nadeem Anwar, consultant psychiatrist

23. Dr Anwar assessed the Applicant at the Respondent’s request, and provided a report dated 19 December 2022.[124] Dr Anwar found the Applicant to be vague and inconsistent in providing details about his history of mental and physical disabilities. He could not provide the timeline of reported psychological symptoms and physical disabilities, the impact of disabilities on his function and his symptoms.[125] Dr Anwar raised concerns that the Applicant’s gait appeared to be unsteady when being observed but was steady when he did not know he was being observed. He noted there was frigidity and distractibility during the assessment and limited eye contact. He noted the Applicant’s speech was monotone.[126]

    [124] JB, 21, Report of Dr Nadeem Anwar, pp 158 – 172.

    [125] Ibid, p 159.

    [126] Ibid, p 163.

24. The Applicant told Dr Anwar that he had anxiety, agoraphobia and depression which he described as feeling sad, overwhelmed, demoralised, hopeless, not able to cope, and problems with sleeping. He reported that he started feeling anxious in his teenage years.[127] The worrying thoughts cause distress and can trigger physical symptoms of anxiety. He reported anxiety around the public. He avoids speaking with strangers. He fears something bad happening to him and people judging him. He avoids public places, open spaces, being in confined spaces and large crowds because of fears something bad will happen or that he will fall due to balance difficulties.[128]

    [127] Ibid, p 159.

    [128] Ibid.

25. Dr Anwar noted that the Applicant denied a previous formal diagnosis of ASD but reported he had learning difficulties, had performed poorly academically at school and required special assistance in primary school.[129]

    [129] Ibid, p 160.

26. The Applicant reported to Dr Anwar that he spends time on social media, watching TV and browsing the internet. He likes walking but avoids walking alone as he fears falling due to his balance problem and back pain. His mother encourages him to wash his clothes and put them in the dryer. He had a licence but lost it a few years ago so he uses public transport to travel. He generally remembers to take his medication.[130]

    [130] Ibid, p 161.

27. The Applicant told Dr Anwar that he attempted to complete many courses including Aboriginal health, drug, and alcohol counselling however he struggled. It took him 7 to 8 years to complete a bachelor’s degree in Aboriginal studies. He could not secure employment after studying because of psychological symptoms, fear of going through the interview process and difficulties organising the paperwork for a job application. He was granted DSP in 2009 but it was cancelled because he could not provide the required documents. He worked at Big W part-time from 2011 to 2014, helping on the floor and placing items on shelves. He started receiving DSP again in 2016.[131]

    [131] Ibid, p 162.

28. The Applicant reported that he has had only one long-term relationship, with Lisa. He reported long-standing difficulties in understanding and showing his emotions, communicating with other people, and explaining his viewpoint. This prevents him from starting intimate relationships.[132] He described keeping to himself, worrying, getting bored and frustrated easily, feeling lonely, sad and anxious when family members do not contact him, struggling with self-esteem and to understand emotions, lacking confidence and getting upset and irritable at times.[133]

    [132] Ibid.

    [133] Ibid, pp 162 – 163.

29. Dr Anwar reported that the Applicant was oriented to time, place and person. His attention and concentration were normal. However his abstract thinking seemed impaired.[134] Dr Anwar found it difficult to establish a clear psychiatric diagnosis, but concluded it was not possible to rule out any specific anxiety or mood disorder. He concluded the Applicant most likely has chronic generalised anxiety, chronic social anxiety disorder, episodes of mild to moderate depressive disorder/adjustment disorder in context of psychosocial instability, most likely has ASD, possibly has a mild intellectual disability and possibly has somatic symptoms disorder/functional neurological disorder (balance) and possibly ADHD. Dr Anwar considered the Applicant’s excessive focus and preoccupation on balance difficulties could be due to sensory hypersensitivity.[135]

    [134] Ibid, p 164.

    [135] Ibid.

30. Dr Anwar suggested that the Applicant could undertake CBT for mood and anxiety/ASD to confirm or rule out ADHD and/or intellectual disability. He recommended exploring recreational activities and linking him with a group to assist him with his social skills deficit due to ASD and social anxiety disorder. He thought an antidepressant could be considered and suggested benzodiazepines to reduce anxiety.[136]

    [136] Ibid, pp 164 – 165.

31. Dr Anwar believed that the Applicant has ASD but required a neurocognitive assessment to confirm the diagnosis.[137] He noted the Applicant’s history indicates he lacks social emotional reciprocity, non-verbal communication behaviours, and the ability to understand and maintain relationships. He noted the Applicant dislikes change. He has a history of restrictive interests and sensory hyperreactivity.[138]

    [137] Ibid, p 165.

    [138] Ibid, p 166.

32. Dr Anwar believed the Applicant’s impairment was in social, interpersonal, recreational, vocational, and cognitive abilities.[139] With respect to the management of the Applicant’s impairments, Dr Anwar did not believe it would be possible for a GP or mainstream public health services to cater for his needs without support and coordinated efforts through an organisation such as NDIS. He believed his impairment was most likely permanent and that his functional impairment could improve with support and treatment.[140]

    [139] Ibid, p 168.

    [140] Ibid, p 169.

33. Dr Anwar noted the Applicant lives alone and does not have regular support. Although he struggles with various domains of his functioning due to multiple physical/psychiatric and neurodevelopmental disabilities, his history indicates that he could continue to live alone without posing serious risk to himself, however his functioning and quality of life could improve with ongoing coordinated efforts. [141]  

    [141] Ibid, p 170.

34. In response to questions about whether early intervention supports would be likely to benefit the Applicant, Dr Anwar set out a suggested plan and opined that it would be likely to benefit by reducing his future needs for support in relation to his current functional impairment. In his opinion providing the Applicant with an opportunity to have coordinated effort to confirm diagnoses and receive adequate and appropriate treatment and support are likely to improve various aspects of his functional impairment caused by neurocognitive and mental disorders and it would improve his quality of life. He believed it would also be likely to prevent deterioration of his current function and strengthen the sustainability of his informal supports (family and friends).[142]

    [142] Ibid, pp 171 – 172.

35. On 9 May 2023, Dr Anwar produced a supplementary report at the Respondent’s request in which he reported that he was not able to confirm or rule out somatic symptoms disorder (one or more somatic symptoms that are distressing or result in significant disruption of daily life, excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns with the state of being symptomatic for more than six months) due to the complexity of the Applicant’s presentation.[143]

    [143] JB, 25, Supplementary Report prepared by Dr Nadeem Anwar, p 210.

36. Dr Anwar was also not able to rule out functional neurological disorder because of the Applicant’s chronic altered motor symptoms, functions and balance, and assessments had failed to establish the cause of his problems. He was of the view it was not possible to rule out factitious disorder and malingering. However he also noted the Applicant’s symptoms cause him significant distress and impairment in functioning.[144]

    [144] Ibid, p 211.

    Dr Travis Wearne, neuropsychologist

37. On 26 May 2023, at the Respondent’s request, Dr Wearne assessed the applicant via Zoom teleconferencing for about four hours, two and a half hours being psychometric testing.[145]

    [145] JB, 24, Report of Dr Travis Wearne, p 190.

38. Dr Wearne reported that the Applicant’s special need at school was the result of externalising behaviour, noting that his anti-convulsive medication made him aggressive. Once his behaviour improved, he was transferred back to mainstream schooling. The Applicant reported that Keppra controlled his epilepsy but had a negative effect on his emotion regulation. He believes his epilepsy has been a limiting factor throughout his life. He engaged in physiotherapy after the fracture in 2013 but did not find it beneficial, noting that his back pain will quickly return following physiotherapy treatments. However he disclosed that his back pain is not an ongoing issue, it comes and goes, but exercise puts pressure on his back.[146]

    [146] Ibid, pp 195 – 196.

39. The Applicant reported to Dr Wearne that his disequilibrium symptoms were his greatest concern. He experiences dizziness and vertigo on a daily basis and it hinders his engagement with most functional tasks noting he cannot cook meals without experiencing symptoms.[147]

    [147] Ibid, p 196.

40. The Applicant told Dr Wearne his psychological distress started in the early 2000s with recurrent panic attacks in 2005. He saw a psychiatrist and clinical psychologist in 2010 but denied having psychological therapy. He engaged with counsellors with minimum success. He said he had never been prescribed psychotropic medication despite it being suggested by doctors, because he is worried those medications will interact with his epilepsy medication and he is fearful that it would augment his dizziness. He had been diagnosed with social anxiety disorder and generalised anxiety disorder. He said that he had never engaged with treatment for these aspects of his mental health.[148] [149]

    [148] Ibid, p 197.

    [149] I note however that the Applicant had in fact engaged with Dr Baker and Mr Court for assistance with managing his anxiety.

1. Dr Wearne observed that the Applicant was compliant and engaged. His self-care seemed appropriate. Adequate rapport was established. The Applicant engaged in conversation and demonstrated good social reciprocity. He was expressive and receptive during conversation. He appeared to understand instructions, maintain concentration and persist on simple and complex tasks. He was forthcoming in answering questions. However he required frequent toilet breaks and at times he experienced dizziness.[150]

   [150] Ibid, p 198.

2. Dr Wearne reported that the Applicant performed within normal limits on the tests administered throughout the assessment, suggesting he was motivated to perform to the best of his ability. There were no concerns with his information processing but he demonstrated considerable variability across indices comprising his intellectual functioning. It was not possible to describe his intellectual functioning as a single score. His verbal intellectual ability was average, his non-verbal visual intellectual abilities were variable his non-verbal abstract reasoning was high average, his visual synthesis and analysis skills were average and his regional quantitative reasoning was low average. The Applicant’s ability to learn unstructured verbal material was initially limited and repetition was necessary to support his learning. Overall the Applicant demonstrated sound intake, retention and retrieval of verbal information from his memory and performed on higher level executive thinking strongly.[151]

   [151] Ibid, pp 198 – 199.

3. The Applicant completed a self-report on behaviour rating inventory of executive functioning, based on his insight and understanding. His results suggest problems with one or more areas of executive functioning. Dr Wearne reported that his difficulties with attention and problem-solving were underpinned by limited initiation skills, limited working memory skills and limited planning and organisation skills.[152]

   [152] Ibid, p 200.

4. With respect to social cognition, the Applicant’s ability to identify emotions, decipher social cues and infer tacitly conveyed social information was variable. He demonstrated difficulties identifying lies and with affective theory of mind. He completed a self-report measure assessing characteristics and behaviours observed across the autism spectrum. His results indicated mild autistic traits. His scores in other assessments suggest deficiencies in reciprocal social behaviour that are clinically significant and may lead to substantial interference with everyday social interactions. Such scores are typical for individuals with ASD with severe severity. His results suggested a broad spectrum of underlying social impairments including social cognition, social communication, social motivation and restricted interests and repetitive behaviours.[153]

   [153] Ibid, p 201.

5. The Applicant’s adaptive behaviour assessment indicate his practical skills fell in the borderline range overall and underlining communication and social skills were rated as a personal weakness. Dr Wearne reported that the Applicant reported extremely severe symptoms of anxiety at the time of the assessment, and mild symptoms of stress and depression.[154]

   [154] Ibid, p 203.

6. Dr Wearne concluded that the Applicant’s profile suggests a personality style characterised by introversion/low positive emotions, anhedonia, pessimism, social introversion, avoidance of social situations, anxiety, insecurity, worry, self-criticism, guilt, and intrusive ideation.

7. With respect to psychometric testing, Dr Wearne concluded that emotional/psychiatric and personality factors drive his psychosocial difficulties. His personality structure is consistent with a Cluster C (anxious/fearful) personality type which predisposes him to anxiety and depression, particularly at times of stress. His anxiety and social avoidance are consistent with a diagnosis of generalised anxiety disorder and social anxiety disorder. Management of his personality functioning is needed to effectively treat his anxiety disorders.[155]

   [155] Ibid, p 204.

8. Dr Wearne reported that the findings suggest a disconnect between the Applicant’s subjective experience of his emotional/social functioning and the results of his objective psychometric testing. This is not to say that he is deliberately exaggerating his symptoms. There was no evidence of feigning or malingering of his cognitive difficulties, rather he is unduly distressed by them. His catastrophising of symptoms is to a large extent a product of his personality style which feeds into his subjective experience of distress.[156]

   [156] Ibid, pp 204 – 205.

9. Dr Wearne concluded that the Applicant’s personality structure and anxiety disorders are the primary psychological factors impacting his psychosocial functional capacity. He formed the view there was little evidence that the Applicant had engaged adequately in treatment for his psychological difficulties, particularly given that he has never been prescribed pharmacological treatments and has only briefly engaged in psychological therapy. In his view there was no evidence that the Applicant had engaged in treatment for his personality structure which is critical for effective treatment of anxiety disorders. He recommended referral to a clinical psychologist who has experience working with people with a Cluster C personality structure. He recommended a pre-treatment program of motivational interviewing to support his engagement in treatment over the longer term. He opined treatment will likely need to be ongoing for several years for it to be effective.[157]

   [157] Ibid, p 205.

10. Dr Wearne’s view was that the Applicant is beyond early intervention support, and that the question of early intervention support is not applicable to his current circumstances.[158]

    [158] Ibid, p 207.

    Dr Bill O’Brien, neurologist

11. After the hearing the Applicant provided to the Tribunal a letter from Dr O’Brien dated 11 September 2023, which states the Applicant “has been having non-specific episodes that are situational in nature and not stereotypical. There are no overt features to suggest seizures. As such I have made no changes to his Keppra dosage of 500 mg BD.”[159]

    [159] Letter from Dr O’Brien, filed 6 December 2023

    The Applicant’s oral evidence

12. When asked about how his vertigo/disequilibrium disorder affects his life, the Applicant explained that he tries “to get out to improve my – get out, like, in the community to try and improve my anxiety…. it doesn't matter how I get out, any time of the day it just comes along and affects me.  Like, yesterday I caught a bus down to the shops and went into the supermarket, and out of nowhere, the anxiety just hit.”[160]

    [160] Transcript, p 10.

13. With respect to the help he receives, the Applicant said “I can do my clothes washing because I put it in the wash and then in the dryer.  My problem is, like, kitchen and preparing meals because when I look down I get very dizzy, and then when I go to look up and move around I'm getting unbalanced and I'm falling over, so I can't stand up to look down for too long.  I have to, like, sit down most of the time.”[161]

    [161] Ibid, p 11.

14. Regarding back pain the Applicant said “each day is different because there's been times, like, if I go out and walk in the shopping centre for quite a while with my walking stick, after a while the pain builds up, right, and sometimes it can just happen when I'm laying down or just sitting down, and, like, it comes and goes.  And, like, when all doctors have asked me this and I explain to them when I – I say to them that my pain comes and goes, like, and some days I might be all right without, but then it will just hit on other days… (the pain can get) very severe, about once or twice a week, for 30 to 60 minutes.” He stated he goes to bed and lies flat on his back until it gets better. He doesn’t take medication. It sometimes interferes with his sleep.[162]

    [162] Ibid, pp 12 – 13.

15. With respect to trialling various medications recommended, the Applicant said “because of my epilepsy medication I refuse to take other medications due to the (indistinct), and also if I do get put on some anxiety medication, like, I'm not sure if it will have an effect, like, make things worse.  Or if it does make things better, when it's time to come off that medication it's going to take a while, and coming off it could make things worse.  So I want to try and get rid of my anxiety in the natural way without having to use drugs.”[163]

    [163] Ibid, p 20.

16. I asked the Applicant how he knows about problems with coming off medication. He said “With getting things – like, coming off medication gets things worse, like, I, like, slowly did a bit of university on Aboriginal health and counselling, but because of my cognitive issue I, like, when I was doing, like, assignments and all that, I couldn't just do it all them at once.  It took me a while, and I have to, like, and then it takes a while to think because my mind goes blank a lot, and, kind of – and during the study you see how people talking about going onto medication where you can't just come off like that because it will affect you badly.  You have to be slowly taken off it.”[164]

    [164] Ibid, p 21.

17. When asked if the Applicant had any other reason he would not take SSRI medication suggested, he said “because I've had my epilepsy all my life, I don't want to have a medication that's going to clash and have me have a seizure.  Like, I'd rather suffer from anxiety than go out and keep on having a seizure, and also no doctor has come along and offered a cure without having to prescribe drugs.  It's the first thing they've gone to is drugs.” When asked if he thinks he will ever trial an antidepressant, the Applicant said “No, it's just – I just want to try and get rid of it the natural way because I know there's natural ways you can get rid of it, but no-one's, sort of, come along and say, you know, you need to do this or do that and help me.”[165]

    [165] Ibid, p 33.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. As demonstrated by the summaries of the various reports provided, there has not been consensus on some of the Applicant’s impairments, and there are different views on whether the Applicant’s impairments are permanent. I had the benefit of hearing from and observing the Applicant over a two-day period. I found him to be an honest witness, who did not embellish his claims. However I had some concerns about his capacity to understand some of the issues raised in his matter. For example, I asked the Applicant about his sessions with Dr Baker and in response to my question about his understanding of CBT he said “I think he done an IQ test.  I'm not sure.”[166] I asked what he learned from the CBT sessions with Dr Baker and he said “Well, thinking all the way back then I'm not sure what I learnt, because I went to see him for anxiety and depression and all that, and he's tried to get me to do some certain things but I'm not sure if I understood what he was trying to do.”[167]

    [166] Ibid, p 19.

    [167] Ibid.

19. Having considered the evidence set out above and the Applicant’s participation and presentation at the hearing, I was satisfied the Applicant was answering those questions honestly. I am of the view his answers are consistent with the observations, concerns and reports of Dr Baker and Mr Court.

20. While I am satisfied the Applicant has been honest in his reporting to the various experts and in his evidence to the Tribunal, I have observed that he can be inconsistent at times. For example, he told Dr Anwar he generally remembers to take his medication, but I note Dr Caruana reported that he often forgot to take Fenofibrate. He told Dr Wearne that he had never engaged with treatment for anxiety but I note he saw Dr Baker and Mr Court for assistance with his anxiety and agoraphobia. Having observed and asked questions of the Applicant over two days, I take the view he is not being intentionally misleading when he gives inconsistent information. I have concluded it is the manifestation of his impairments that results in his recollections and evidence being at times inconsistent.

21. I note that, in the main, the experts to whom the Respondent referred the Applicant found him to be co-operative and willing to complete the assessments. Dr Wearne reported that the Applicant performed within normal limits on the tests administered throughout the assessment, suggesting he was motivated to perform to the best of his ability. It was only Dr Anwar who had some concerns, for example about the Applicant’s gait, but ultimately he found the Applicant to be impaired and in need of support. I am satisfied the Applicant always performed on the day to the best of his ability during those assessments and any irregularities in the results were due to the manifestation of his impairments.

22. It is in the context of having the benefit of hearing from the Applicant and observing his engagement in the hearing process, I make the following findings.

    Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable?

23. I have considered whether the Applicant has a disability that is attributable to an impairment or impairments.  As I have explained, these need to be identified with some precision.

24. At the hearing I was informed by the Respondent that it concedes that paragraph 24(1)(a) is satisfied in respect of impairments associated with epilepsy and disequilibrium disorder,[168] although this was not reflected in its written closing submissions. 

    [168] Transcript, p 7.

    Epilepsy

25. Regarding epilepsy, in closing submissions, the Applicant has submitted that he continues to press epilepsy as an impairment “but only in so far as it is a contributing factor to the Applicant’s overall moderate depressive disorder/adjustment disorder. It is one more serious physical disorder that the Applicant has to mentally contend with and no epileptic could be said to be anything but concerned with the fact that they suffer from this serious affliction, whether it is successfully medicated or not.”[169]

    [169] Applicant’s closing submissions, pp 4 - 5.

26. There was significant discussion at the hearing on the issue of whether the Applicant’s current Keppra dose, for epilepsy, was sufficient. There has also been an issue raised about whether the Applicant’s “daydreaming” episodes are petit mal seizures. Dr Granot expressed the view that, as the Applicant was only on the starting dose of Keppra, it was “not an unreasonable expectation that not all seizure types will be controlled at this low dose.”[170] He was of the view there is a reasonable chance of better managing the Applicant’s epilepsy and “certain prospects for substantial improvement in seizure frequency with higher doses.”[171]

    [170] Transcript, p 67.

    [171] Ibid.

27. I note however that there is evidence that the Applicant’s seizure disorder is stable on Keppra. In September 2021 Dr O’Brien reported “It appears that from seizure disorder point of view, he is very stable on Keppra currently and we recommend to continue on the same dose for now.”[172]  I asked the Applicant if it has been suggested to him that he increase his Keppra dose. He indicated that he saw Dr O’Brien again in early 2023 and mentioned Dr Granot’s view that his Keppra dose should be increased. He said Dr O’Brien said they did not need to increase his dose; there is no reason to do so because it is controlled. He said Dr O’Brien knew about his “daydreaming” episodes.[173]

    [172] JB, 28, Letter from Dr O’Brien, p 243.

    [173] Transcript, p 79.

28. I noted I had not seen a recommendation from a treating doctor, since Dr Caruana’s recommendation in 2017, that the Applicant increase his Keppra dosage. I asked the Applicant if he could provide a written statement to the Tribunal from Dr O’Brien regarding the issue of his current Keppra dose. After the hearing, in December 2023, the Applicant provided to the Tribunal a letter from Dr O’Brien which states the Applicant “has been having non-specific episodes that are situational in nature and not stereotypical. There are no overt features to suggest seizures. As such I have made no changes to his Keppra dosage of 500 mg BD.”[174]

    [174] Letter from Dr O’Brien, filed 6 December 2023.

29. I gave the Respondent an opportunity to comment on this letter. The Respondent characterised the Applicant’s episodes as “petite mal seizures”, contrary to Dr O’Brien’s view.[175] The Respondent argued the hearing proceeded on the basis the Applicant was experiencing “petite mal seizures”, relying on the opinion Dr Granot formed after his review of the material and a telehealth consultation with the Applicant, contrary to Dr O’Brien’s view that the Applicant’s seizure disorder is “very stable on Keppra”.[176] Dr Granot stated at the hearing “these are the episodes that I presume are what Mr Smith was describing.”[177]

    [175] Respondent’s comments on the letter from Dr O’Brien, filed 12 December 2023.

    [176] Ibid.

    [177] Transcript, p 67.

30. The Respondent submitted that Dr O’Brien’s new evidence introduces uncertainty around this issue and while there is evidence of further treatment options for “petite mal seizures” (increasing the Keppra dose), there is no evidence before the Tribunal about treatment for non-specific episodes that are situational in nature and not stereotypical. The Respondent submitted that the Tribunal could not conclude that there are no appropriate, available, evidence-based treatments likely to remedy this impairment and it must conclude treatment and review is required before permanency can be demonstrated.[178]

    [178] Respondent’s comments on the letter from Dr O’Brien (n 175).

31. The Respondent also submitted that Dr O’Brien’s evidence does not exclude the possibility that the Applicant continues to experience “petite mal seizures” for which an increase in Keppra would be indicated. Reference was made to Dr Granot’s oral evidence that the Applicant was experiencing “petite mal seizures”. The Respondent noted the Applicant did not take issue with this opinion through cross-examination. The Respondent submitted “there is no basis to dismiss Dr Granot’s evidence in favour of Dr O’Brien’s and there is no apparent basis to confer greater weight to one expert’s evidence over the other.”[179] For the following reasons, I disagree with the Respondent’s view.

    [179] Ibid.

32. Essentially Dr Granot disagrees with the Applicant’s treating doctor, Dr O’Brien. Dr Granot formed the view the Applicant is having daily petit mal seizures.[180] Dr O’Brien is not persuaded this is the case. Dr O’Brien has been the Applicant’s treating neurologist since at least 2017. He has met with the Applicant in person. He has conducted assessments in person. The Applicant has been a patient of the neurology outpatient clinic where Dr O’Brien is based since at least 2016. Dr Granot’s assessment was completed by telehealth in one consultation. He admitted he could not perform a cognitive assessment because the Applicant was on a mobile phone and it could not be performed reliably.

    [180] Report of Dr Ron Granot (n 104, n 117).

33. Dr O’Brien has recorded that the Applicant has been troubled by disequilibrium for 20 years.  The Applicant had reported to him having felt significantly anxious and a feeling of panic with ongoing imbalance symptoms. Dr O’Brien reported in September 2021 that on examination there was “no evidence of any focal neurology. His cranial nerve examination was normal. There was no nystagmus at rest or at an evoked gaze. His extraocular eye movements were normal. He did not have any focal motor or sensory deficit on his peripheral nerve examination. There was mild truncal ataxia (leaning to left) noticed while walking, however this ataxia was not reproducible at all times during the examination. His head impulse test and the Unterberger’s test was negative. His Romberg’s test was negative as well.” Dr O’Brien then concluded from a seizure disorder point of view, the Applicant was very stable on Keppra and he recommended he continue on the same dose. With respect to the Applicant’s disequilibrium symptoms, Dr O’Brien reported “in absence of any objective reversible organic pathology (with limited investigations), it appears that his background of anxiety and panic attacks may be contributing to worsening of these symptoms.”[181]

    [181] Letter from Dr O’Brien (n 172), p 243.

1. Dr Anwar noted the Applicant reported long-standing difficulties in understanding and showing his emotions, communicating with other people, explaining his viewpoint, non-verbal communication behaviours, and the ability to understand and maintain relationships. Dr Wearne also noted the Applicant has difficulties with social communication. I am of the view these issues relate to social interaction rather than the communication domain.

2. Ms Hildebrand reported that the Applicant understands spoken and written text but required assistance in completing standardised assessments. He demonstrated to her the capacity to read and write independently. In her view he requires no support to use a telephone or tablet for communicating.

3. I am satisfied that the Applicant can participate in communication related activities independently. I am satisfied that he is able to perform tasks or actions required to undertake or participate effectively or completely in basic communication activities, without assistive technology or equipment. I am not satisfied that any of the circumstances in rule 5.8 are met in his case, with respect to communication.

4. Having considered the Operational Guideline, I am satisfied the Applicant is able to speak and write to express himself, and that he is able to understand people, and be understood.

5. On the basis of the information before me, I am satisfied the Applicant is able to participate effectively and completely in communicating. Accordingly, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.

   Social interaction

6. The Operational Guideline with respect to social interaction currently states as follows:

   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.

7. There appears to be a long-standing difficulty for the Applicant with respect to social interaction. Dr Malek reported in 2009 that the Applicant had an anger problem, short temper and a low tolerance for people.[240]

   [240] Letter from Dr Youssef Malek (n 27).

8. Dr Rees reported in the access application that the Applicant needs assistance to engage in social interaction because of his agoraphobia and his tendency to self-isolate.[241]

   [241] Access request form (n 61), p 109.

9. Ms Hildebrand formed the view the Applicant needs high levels of guidance and supervision assistance to access the community, a moderate level of supervision and guidance with problem solving, managing anxiety and mood, and social behaviours and support to facilitate social interaction. She noted the Applicant appeared to lack insight with regard to his behaviour and its impact on his relationships with Lisa and his son. He becomes verbally aggressive to re-enforce his way of doing things. Lisa also described his behaviour as “strange and difficult at times especially when he has to start a conversation”. She described him as “socially awkward” as he would say inappropriate things, be very blunt in expressing his opinion, and speak in a one volume voice and not adjusting at night when the children are in bed. Lisa reported Mr Smith will get frustrated and start to yell, swear, and walk away. He does not lash out physically but will be emotionally aggressive. Lisa advised that whilst in a relationship with Mr Smith, he has hit her. Lisa described Mr Smith as becoming easily upset when things do not go as planned or expected.”[242]

   [242] Report of Ms Annarie Hildebrand (n 67), p 82.

10. The Applicant also reported to Ms Hildebrand difficulties walking where there are people and having to ask people to move so that he can pass. He reported panic attacks being triggered by shopping and when people are walking slowly in front of him as he struggles to get around them. He reported high levels of anxiety, panic and vertigo when accessing the community, crossing roads or open spaces, negotiating crowds of people and stairs. In my view this indicates the Applicant has substantial difficulty in interacting in the community about basic things such as negotiating space in a public setting.[243]

    [243] Report of Ms Annarie Hildebrand (n 67).

11. Ms Hildebrand was asked to comment on the Applicant’s functional capacity in relation to mobility. She stated the Applicant’s “high levels of anxiety and panic is aggravated by his unsteadiness and difficulty with walking across open spaces, uneven surfaces and negotiating stairs. In addition, he finds it difficult to standing one place for prolonged periods as it aggravates his vertigo. Although Mr Smith is able to access the community he does so with high levels of anxiety and panic that he may fall, misjudge distances, bump into people, and appear inebriated. Mr Smith has regular panic attacks which contributes to him staying at home and avoiding accessing the community.”[244] I am of the view this is relevant to his capacity for social interaction.

    [244] Ibid, p 107.

12. In her oral evidence Ms Hildebrand told the Tribunal that while the Applicant would be capable of engaging socially in a one-on-one situation, he has struggled to form and maintain relationships. He was able to attend his Aboriginal group prior to Covid but has not reconnected. When asked if his anxiety and stress limit his social interaction and social contact in the community, Ms Hildebrand said “definitely”. She stated with respect to his WHODAS results that “of significance was the domain of getting along with people, which was 65 per cent, which was moderately difficult, and that also relates, perhaps highlights his difficult with anxiety and insight in forming relationships.”[245]

    [245] Transcript, pp 47 – 48.

13. Ms Hildebrand also told the Tribunal with respect to his DASS-21 assessment, “Mr Smith scored – got a score of seven, which is – for both anxiety and depression, which is moderately severe, and a stress score of nine, which was – falls at a mildly severe level.  But I – based on my observations on the day and his reports of difficulty, I thought that was quite consistent with his report of the impact of anxiety and depression on his functional ability – he struggles with social isolation.  He hasn't reengaged with social groups.  He doesn't have close friends and family to support him.  It was very limited engagement with family.  And also, like I said, he didn't reengage – he hasn't reengaged with any of his social support groups yet.”[246]

    [246] Transcript, pp 48 – 49.

14. Ms Hildebrand explained that the Applicant “scored a score of 22 out of 48 which indicated a moderately high level of disability with activities of daily living and social participation.  I actually did this assessment with his ex-partner, Lisa, over the telephone…  So there were specific difficulties – she identified difficulties for self-care social skills which will impact his ability to live in the community and – with his social behaviour.”[247]

    [247] Transcript, p 49.

15. Dr Anwar noted the Applicant reported long-standing difficulties in understanding and showing his emotions, communicating with other people, and explaining his viewpoint, preventing him from starting intimate relationships. He described keeping to himself, worrying, getting bored and frustrated easily, feeling lonely when he is on his own, feeling sad and anxious when family members do not contact him. The Applicant reported to Dr Anwar anxiety around the public and that he avoids speaking with strangers as he fears something bad happening to him and people judging him.[248]

    [248] Report of Dr Nadeem Anwar (n 1), p 159.

16. I note the Applicant has indicated he is able to go shopping by himself but it is evident that he avoids social contact because of his psychosocial impairment. I note he is currently assisted to shop by HASI. Ms Hildebrand reported that the Applicant “experiences significant difficulty accessing public transport to do his shopping and experiences increased levels of anxiety and unsteadiness when having to access the community. Mr Smith advised he often prefers to stay home rather than go out.”[249] She noted the Applicant does not have any close friends of family support (apart from his elderly mother). In her view he requires support to re-engage with social support groups.[250]

    [249] Report of Ms Annarie Hildebrand (n 67), p 90.

    [250] Ibid, p 92.

17. While the Applicant has some social contact when out by himself, I am of the view he often does this in a state of anxiety and panic. I find persuasive Ms Hildebrand’s conclusion that the Applicant requires support to engage socially. I am persuaded by the information provided by Lisa indicating the Applicant struggles to interact socially and that at times he is inappropriate in his responses. I am satisfied the Applicant withdraws and self-isolates rather than deal with the anxiety and panic he experiences when interacting socially.

18. Having regard to rule 5.8, I am satisfied the Applicant usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to perform the tasks of social interaction. Accordingly I am satisfied the Applicant has a substantially reduced functional capacity in the domain of social interaction as described in rule 5.8(b).

19. In the event that I am wrong about this, having regard to the Operational Guideline, I am satisfied the Applicant has significant difficulty in making and keeping friends and interacting with the community. I am also satisfied the Applicant has challenges coping with his feelings and emotions in social situations and in his relationships.

20. Overall I am satisfied the Applicant has a substantially reduced functional capacity in the social interaction domain.

    Learning

21. The Operational Guideline with respect to learning currently states as follows:

    Learning – how you learn, understand and remember new things, and practise and use new skills.

22. Dr Rees did not indicate the Applicant requires assistance to learn effectively in the access application form, although he reported the Applicant has an intellectual disability.

23. Ms Hildebrand did not indicate the Applicant has a reduced functional capacity to learn.

24. Dr Baker had hypothesised that the Applicant’s IQ would be lower than normal, notwithstanding he scored 93 in a formal IQ test.

25. Mr Court formed the view it was unlikely attempts at therapy would resolve the Applicant’s anxiety and agoraphobia due to limitations in his learning capabilities.

26. Mr Wigley concluded the Applicant demonstrated no cognitive impairment but had weakness in crystallised intelligence. Dr Granot explained at the hearing that “fluid intelligence is what we'd regard as the ability to reason and think flexibly.  Whereas crystallised intelligence is more learning and knowledge.  So that's facts and skills that are acquired throughout life…With crystallised intelligence - which is based essentially on education or largely on education - can increase over time.” Dr Granot explained that the Applicant’s crystallised result placed the Applicant placed him in the ninth percentile, to be borderline impaired. He explained that this result tends to be influenced by education.

27. I note however that the Applicant has been awarded a Bachelor of Aboriginal Studies, although he reported he struggled with this study and it took him seven to eight years to complete.

28. I note that his IQ is 93 and while this might limit his learning capabilities it does not confirm the Applicant has an intellectual disability.

29. I take into account however that the Applicant has been able to learn to use technology, to access the internet, to spend time on social media, and to complete the assessment processes for Ms Hildebrand with only some assistance.

30. On the evidence before me I am not satisfied that any of the circumstances in rule 5.8 apply in the Applicant’s case. While I accept the Applicant struggled to complete his bachelor’s degree I am of the view the benchmark in assessing whether a person has a substantially reduced functional capacity is not whether the person can complete a tertiary qualification without assistance. I am of the view the Operational Guideline is referring to learning basic things, necessary to function on a day to day basis.

31. I am satisfied on the evidence before me that the Applicant is able to learn, understand and remember new things, and practise and use new skills, so long as they are not complex.

32. Considered overall I am not satisfied there is evidence to confirm the Applicant’s cognitive, psychosocial or physical impairments impact, in any substantial way, his functional capacity to learn. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.

    Mobility

33. The Operational Guideline with respect to mobility currently states as follows:

    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.

34. In considering whether the Applicant’s impairments result in substantially reduced functional capacity with respect to mobility, I take into account his permanent impairments, that is, his psychosocial disability, his physical impairment associated with his back pain and disequilibrium/vertigo and his cognitive impairment.

35. When completing the access application, Dr Rees did not indicate the Applicant requires assistance with mobility, although he noted he does not drive and requires community transport.

36. In his statement of lived experience, the Applicant provided the following information. He cannot walk to the local shop/park because it is too far to walk. He does not drive but he can use public transport. He feels dizzy and unbalanced when moving around his house. He can get out of bed but does it with a bit of pain. He gets out of chairs slowly.[251]

    [251] JB, 15, Applicant’s Statement of Lived Experience, p 53.

37. In August 2020 Ms Seifert reported that the Applicant finds household management and cleaning tasks difficult to complete due to vertigo and back pain. He was able to vacuum the floors and mop tiled areas but found it difficult cleaning the toilet, shower recess and bath due to difficulty kneeling on the ground and safely and independently standing back up from a kneeling position. He could not stand for long periods due to back pain so was not able to cook.

38. Dr Granot formed the view the Applicant’s back pain does not play a significant role in impairing his mobility. He formed the view his disequilibrium is a more prominent factor.[252] 

    [252] Report of Dr Ron Granot (n 104), p 148.

39. Dr Anwar noted the Applicant reported intermittent pain and that he does not take any regular medication for back pain.[253]

    [253] Report of Dr Nadeem Anwar (n 1), p 161

40. Ms Hildebrand reported with respect to mobility that the Applicant walks independently and without any walking aids. However, he is unsteady crossing the road and seems to veer off course and lean towards the left side in an attempt to stay upright. He reported increased vertigo when crossing open spaces. He also feels dizzy and disorientated when people walk across in front of him. She noted he negotiated stairs slowly and carefully, holding on to the banister rail for support. He reported increased vertigo with prolonged standing in one spot and was observed to sway from side to side to maintain his equilibrium.[254]

    [254] Report of Ms Annarie Hildebrand (n 67), p 85.

41. Ms Hildebrand observed the Applicant bend at the waist, squat, and kneel without difficulty. He could sit, stand and walk. He did move slowly and carefully and, during functional tasks, held onto available furniture for support. He demonstrated his capacity to lift about 15 kg from the floor to above head level. However, she formed the view the Applicant has reduced functional capacity in relation to mobility because he is anxious that he may fall.[255]

    [255] Ibid, p 107.

42. Having considered Ms Hildebrand’s functional assessment, I am satisfied the Applicant is able to mobilise independently, traverse stairs using a banister for stability, and transfer from bed, a chair and the toilet. She observed him to have the capacity to don and doff socks and shoes whilst seated. He can bend, squat and kneel without difficulty. He can vacuum, mop and make his bed. He can walk up to 300 metres.  While he no longer has a driver’s licence, I am satisfied he is physically able to catch public transport. However his anxiety about being in public spaces impacts on his capacity to do this.

43. The Applicant mentioned using a walking stick at the hearing but I am of the view that is a commonly used item.

44. In considering whether the Applicant satisfies the requirements of rule 5.8, I must apply the test set out in Foster, in which the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of (the activity).”[256] As such, the activity to be assessed is mobility as a whole, not a specific task or action within mobility.

    [256] Foster at [65].

45. Taking into account the Court’s guidance in Foster, considered overall, while I accept there are some limitations on the Applicant’s capacity to mobilise with respect to standing for prolonged periods, and the struggles he has because he is unsteady crossing the road and crossing open spaces, I am not satisfied his impairments result in the Applicant being unable to participate effectively or completely in mobilising, or to perform tasks or actions required to undertake or participate effectively or completely in mobilising, without assistive technology, equipment (other than commonly used items) or home modifications. I am not satisfied any of the circumstances set out in rule 5.8 are met with respect to mobility.

46. I have considered whether the Applicant has a substantially reduced functional capacity in relation to the activities listed in the Operational Guideline. I am satisfied he is able to move around his home and community, transfer independently and use his arms and legs. I am not satisfied he needs a high level of support from other people with respect to mobility as a result of his impairments. Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.

    Self-care

47. The Operational Guideline with respect to self-care currently states as follows:

    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.

48. Dr Rees stated in the access application that the Applicant needs prompting to shower and bathe and grab rails and a seat due to dizziness while showering.

49. While I note Dr Granot formed the view the Applicant has no impairment in self-care activities, and Dr Wearne assessed by Zoom that his self-care “seemed appropriate”, I give more weight to Ms Hildebrand’s report given she undertook an in-person functional assessment with the Applicant.

50. The Applicant reported to Ms Hildebrand dizziness when dressing and showering. She observed that the Applicant was appropriately groomed with hair washed and beard shaved. To avoid prolonged standing he avoids food preparation, using cutlery and crockery and does not cook apart from preparing ready made meals.

51. Ms Hildebrand also reported on assessment the Applicant scored in the clinically significant range in the self-care domain, indicating that on a life skills profile he has difficulty with managing his health. This in my view is consistent with the Applicant’s inability to engage meaningfully in therapies to treat his anxiety, his refusal to consent to medical tests such as the Dix-Hallpike manoeuvre and MRIs because of his anxiety and back pain, and his anxiety about trialling medications.

1. Ms Hildebrand formed the view the Applicant requires a shower chair, grabrails and long handled sponge for showering, and a grabrail for toileting. She noted he dresses independently. Lisa reported to Ms Hildebrand that the Applicant would often not shower for 3-4 days, that he can be odorous and that he requires prompting to take a shower.

2. Ms Hildebrand was asked to comment on the Applicant’s functional capacity in relation to self-care. She stated the Applicant “has the capacity to complete self-care tasks independently with provision of some aids (shower chair) and grabrails in the shower he will be able to continue showering safely and independently from a physical perspective. Mr Smith will at times neglect personal care and go 3-4 days without showering. He lacks insight and reports memory difficulties at times and will benefit from periodic reminders to take regular showers.”[257]

   [257] Report of Ms Annarie Hildebrand (n 67). p 107.

3. I note the Applicant has demonstrated a capacity to engage with medical practitioners, such as Dr O’Brien, and with his other treating doctors. However his anxiety appears to prevent him from achieving the best possible health outcomes, for example by trialling various medications, recommended by his treating doctors, such as SSRIs, and undergoing diagnostic tests. I note he has HASI assistance to attend appointments.[258] I note he claims to be compliant with medication, but Dr Caruana reported that he forgets to take his medications and Dr Timms reported that he stopped taking a medication when he ran out of scripts.

   [258] Ibid.

4. Ms Hildebrand is of the view the Applicant needs transport support as he demonstrated difficulty with walking to his local bus stop, waiting at the road to cross, crossing roads and appeared unsteady and at risk of falling. She concluded he requires assistance to access public transport and the community safely and independently. I am of the view this impacts his capacity to attend to health needs, such as medical appointments, and this is an important aspect of health care.

5. Ms Hildebrand reported that the Applicant’s garden is overgrown and unkept, and he has difficulty with maintaining the garden as he does not have a lawn mover. She formed the view he would require support to maintain the yard and lawns to acceptable standards.

6. Again, when considering whether the Applicant satisfies the requirements of rule 5.8, I must apply the test set out in Foster, and assess his functional capacity with respect to the bundle of tasks and actions forming the concept of self-care. I assess the activity of self-care as a whole, and not a specific task or action within self-care. However I note that the Court did not state that the person must not be capable of performing any of the tasks of an activity to have a substantially reduced functional capacity in that domain.

7. Considered overall, I am satisfied the Applicant is able to attend to some aspects of personal care such as grooming, dressing, toileting, eating and drinking. While I note the Applicant avoids preparation to avoid prolonged standing, I am satisfied he can prepare simple preprepared meals. I am satisfied he can undertake some housework.

8. I am not satisfied the Applicant has the capacity to meet his health care needs and achieve the best possible levels of function by completing diagnostic tests and trialling recommended medications. I am not satisfied the Applicant will be able to travel to medical appointments independently, or do his shopping on a regular basis, if his HASI support is not available.  I note that both Dr Rees and Lisa have reported that the Applicant requires prompting to shower and that he can become odorous. While the Applicant has been showering independently, I note Ms Hildebrand is of the view he requires the equipment set out above to do so safely. I note the Applicant holds on to the shower screen for stability. I am not satisfied grabrails are commonly used items. I am not satisfied the Applicant can attend to gardening.

9. On the evidence before me, I am not satisfied rules 5.8(b) or (c) apply. With respect to rule 5.8(a), I accept the Applicant has an incapacity to shower routinely and safely, to travel to medical appointments without assistance, to follow the advice of treating professionals so as to achieve the best possible outcomes with respect to his health and to maintain his garden. Considered overall, I am satisfied the Applicant is unable to participate effectively or completely in the activity of self-care, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology or equipment (other than commonly used items).

10. Accordingly I am satisfied the Applicant has substantially reduced functional capacity in the activity of self-care.

    Self-management

11. The Operational Guideline with respect to self-management relevantly states as follows:

    Self-management – 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.

12. Dr Rees did not indicate that the Applicant has a substantially reduced functional capacity in self-management.

13. In his statement of lived experience the Applicant stated he manages his own appointments but relies on a support worker to take him. He pays his own bills using Bpay, his pension goes into his own bank account, and he makes his own decisions about his life. He stated the only support he receives is from HASI organised by New Horizons.[259]

    [259] Applicant’s Statement of Lived Experience (n 251).

14. Ms Hildebrand reported with respect to self-management that the Applicant makes his own decisions and health appointments, maps out his day and has a semi structured weekly routine. The Applicant advised Ms Hildebrand that he advised he had always been independent and organised with paying his bills on time and managing his finances.[260]

    [260] Ibid, p 91.

15. Dr Granot formed the view the Applicant is independent in terms of his financial and executive tasks.[261]

    [261] Report of Dr Ron Granot (n 104), p 146.

16. I am satisfied the Applicant is able to complete the self-management tasks described above independently and without limitation so long as he has assistance with transport to attend appointments. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to self-management.

    Conclusion of whether the Applicant has a substantially reduced functional capacity in any of the relevant domains – paragraph 24(1)(c)

17. Considered overall I am satisfied the Applicant has a substantially reduced functional capacity in the domains of social interaction and self-care. Accordingly paragraph 24(1)(c) of the Act is met.

    Does the Applicant’s impairment affect his capacity for social or economic participation?

18. The Respondent has submitted that only permanent impairments are to be taken into account in determining the impact of a person’s social or economic participation and as, in its view, the Applicant does not have permanent impairments, this requirement is not met.[262]

    [262] RSFIC at [73] – [74].

19. As I have found the Applicant does have permanent impairments, I will consider whether his impairments affect his capacity for social or economic participation.

20. The Applicant is in receipt of DSP which was granted on the basis that his impairments prevent him from undertaking training or employment. While he has been employed in the past, he has not worked for several years. For the reasons discussed above I am also satisfied the Applicant’s psychosocial disability affects his capacity to engage socially. Having considered the evidence set out above, I am satisfied the Applicant’s impairment affects his capacity to work, socialise and engage with his community.

21. I am satisfied the Applicant’s impairments affect his capacity for social and economic participation and so the requirement in paragraph 24(1)(d) of the Act is met.

    Is the Applicant likely to require support under the National Disability Insurance Scheme for his lifetime?

22. I must consider whether the Applicant is likely to require support under the NDIS for life under paragraph 24(1)(e). This consideration involves an assessment of the likely duration of his requirement for support under the NDIS, should he be granted access as a participant.

23. The Respondent’s submission on this requirement stems from its position that the Applicant has not established that he has a substantially reduced functional capacity in any of the domains set out in paragraph 24(1)(c) of the Act. For the reasons given above I disagree with that view.

24. I have found the Applicant’s physical and cognitive impairments are permanent. I am satisfied the Applicant’s psychosocial impairment will be lifelong and he will require ongoing support to address its impact on his functional capacity.

25. I have had regard to the Court’s direction in Foster, that in considering whether a person is likely to require support under the NDIS for their lifetime:

    ·the focus is on whether a person is likely to require support under the NDIS for their lifetime or whether those support needs are most appropriately met by other systems;[263]

    ·it would be wrong to ask whether supports under other systems would be comparable to what would be available under the NDIS;[264]

    ·a person cannot be funded for a support under two schemes. There is no scope for a support to be partially funded under the NDIS.[265]

    [263] Foster at [93].

    [264] Ibid at [95].

    [265] Ibid at [98].

26. I note a person cannot be funded for a support under two schemes. In his statement of lived experience the Applicant stated the only supports he receives is from HASI organised by New Horizons.[266] With respect to New Horizons, I note it is recorded that he was also engaged with New Horizons to assist with a housing transfer and with Centrelink.[267]

    [266] Applicant’s Statement of Lived Experience (n 251).

    [267] JB, 29, clinical notes, p 655.

27. I am satisfied the Applicant is currently receiving support from HASI for transport and it appears his transport needs are being met by HASI. I do not need to compare the support he receives from HASI with any transport support that would be available under the NDIS.

28. However I am satisfied there are other supports the Applicant needs that are not provided by HASI. He needs supports to address his social isolation and need for engagement in the community, for social interaction. He also needs supports to address his functional incapacity with respect to self-care. There is no evidence before me to indicate he is receiving those supports. My view is he is likely to require those supports for his lifetime.

29. Accordingly, I am satisfied the Applicant is likely to require support under the NDIS for his lifetime and paragraph 24(1)(e) of the Act is met.

    CONCLUSION

30. There is no dispute that the Applicant’s meets the requirements of sections 22 and 23 of the Act.

31. For the reasons given above, I am satisfied that the Applicant meets the disability requirements set out in section 24 of the Act.

32. As the Applicant meets the disability requirements it is not necessary for me to consider whether he meets the early intervention requirements.

33. Accordingly, I find the Applicant meets the access criteria set out in section 21 of the Act.

    DECISION

34. The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

I certify that the preceding three-hundred-and-seven (307) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.

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

Associate

Dated: 27 February 2024

Date(s) of hearing:	10, 11, 27 October 2023
Date final submissions received:	6 February 2024
Advocate for the Applicant:	Mr M Charlton, Synapse Australia
Solicitors for the Respondent:	Mr M Pleming, HWL Ebsworth Lawyers