Sutherland and National Disability Insurance Agency

Sutherland and National Disability Insurance Agency [2024] AATA 411 (23 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2022/5334
Re:Sherri Sutherland
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:23 February 2024
Place:Melbourne

The Tribunal sets aside the Decision Under Review and, in substitution, decides that the Applicant meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) and is to be granted access as a participant in the National Disability Insurance Scheme.
........................................................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) are met – “disability requirements” under 24 – Applicant has disability arising from various physical and psychosocial impairments – spinal stenosis and degenerative disc disease – chronic obstructive airways disease (COAD) – hypothyroidism – ischaemic heart disease – ulcerative colitis – chronic pain – whether any one or more impairments are, or likely to be, permanent – whether any one or more impairments have resulted in substantially reduced functional capacity in any one or more of the six prescribed activities – decision under review set aside and substituted with decision that Applicant meets access criteria under s 21 of the NDIS Act
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
Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) < FOR DECISION
Senior Member K. Parker
23 February 2024
INTRODUCTION

This application is about whether the Applicant, Ms Sherri Sutherland, should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). Ms Sutherland seeks review of a decision made by a “reviewer” on 25 January 2022 under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’),[1] confirming an earlier decision by a delegate of the Chief Executive Officer (‘CEO’) of the Respondent, the National Disability Insurance Agency (‘NDIA’), on 28 October 2021,[2] not to grant access to Ms Sutherland as a participant in the NDIS.
[1] The NDIA lodged a set of documents with the Tribunal, pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents). Refer T-Documents, T2.
[2] T-Documents, T12.
The Tribunal’s jurisdiction to undertake this review arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal sets aside the decision under review and substitutes it with a decision that Ms Sutherland meets the access requirements under s 21 of the NDIS Act, specifically, ss 22, 23 and 24 of the NDIS Act and consequently, is to be granted access to the NDIS.
BACKGROUND
Family, education, and employment background
Ms Sutherland is aged 67. She was aged 64 as of the date she made an access request under s 18 of the NDIS Act. Ms Sutherland lives in a detached home in rural Victoria. She previously worked as a nurse before ceasing work in 1999.[3] Ms Sutherland is from the United States and immigrated to Australia a few decades ago. She receives partial disability pensions from both the United States and Australia. When combined, those pensions are equivalent to a standard disability support pension in Australia.
[3] Joint Hearing Tender Bundle (‘JHTB’), 170.
Sadly, Ms Sutherland has been widowed on three occasions. Her most recent late Australian husband died in 2012 and she now lives alone in her home. She does not have any children. Ms Sutherland has a brother who lives in the United States. He visited her in Australia for an extended period over Christmas 2022.
At the hearing, Ms Sutherland informed the Tribunal, in answer to questions asked of her, that she is on an interim My Aged Care package, Level 2,[4] which she described as “grossly inadequate”.
[4] By “Interim”, Ms Sutherland said she was referring to interim, while she is awaiting an outcome in this application for review.
History of impairments
Ms Sutherland relies upon the following impairments in seeking access to the NDIS under either s 24 or s 25 of the NDIS Act:
(a)physical and neurological impairments resulting from one or more of the following conditions:
(i)spinal stenosis reportedly causing primarily lower back pain and occasional pain between the shoulder blades, intermittent leg pain, pins and needles and numbness in the whole bilateral legs and buttocks about 5 to 10 times on average per week, chronic pain, and bowel incontinence;
(ii)cardiovascular conditions including chronic obstructive airways disease (‘COAD’), causing shortness of breath when walking and on exertion;
(iii)hypothyroidism reportedly causing reduced stamina and fatigue; and
(b)psychosocial impairments resulting from her conditions of:
(i)depression and anxiety. Ms Sutherland reportedly experiences suicidal ideation, as confirmed by her at the hearing.
The Tribunal will refer to the impairments described in paragraph [7a.] collectively as the Claimed Physical & Neurological Impairments and the impairments described in paragraph [7b.] collectively as the Claimed Psychosocial Impairments.
Request for access to the NDIS
On 19 January 2021, Ms Sutherland has made a verbal request to the NDIA under s 18 of the NDIS Act, to be granted access as a participant in the NDIS.[5] Following this request, a “NDIS Access Request – Supporting Evidence Form”, completed by Ms Sutherland’s treating general practitioner, Dr Andrew Schon, on 12 May 2021, was submitted to the NDIA (‘First SEF’).[6] Dr Schon states on the First SEF that Ms Sutherland’s primary impairment is “severe L5/S1 disc degeneration” which she has had for longer than 12 years and which he considered likely to be “a lifelong impairment”. Dr Schon also states that Ms Sutherland has a severe secondary impairment being “irreversible” COAD. Dr Schon states that Ms Sutherland has another impairment being hypothyroidism for which she requires hormone replacement therapy since undergoing a “subtotal” thyroidectomy. Dr Schon states that Ms Sutherland required home modification in relation to being mobile and with self-care, because of her impairments.[7]
[5] T-Documents, T5.
[6] Ibid T6.
[7] Ibid, T6, 32; 34.
Dr Schon also provided a follow up medical letter dated 17 May 2021 (‘Dr Schon’s May 2021 Letter’) stating as follows:[8]
[8] Ibid, T7.
(a)Ms Sutherland has been a patient of Dr Schon’s since 2012, and of his clinic since 2005;
(b)Ms Sutherland suffers from severe degenerative disc disease of her entire spine, but particularly at L5/S1 where he said there is “complete obliteration of the disc space, bone on bone contact and compression of S1 nerve root”;
(c)a spinal cord stimulator has been inserted into Ms Sutherland’s body, as a treatment, and Ms Sutherland has also trialled Amitriptyline, Nortriptyline, and Lyrica, but she was unable to tolerate those medications;
(d)she suffers from severe burning lower back pain which radiates into both buttocks and down to her left foot;
(e)intermittently, Ms Sutherland is unable to move her left leg and is unable to drive causing her to become housebound;
(f)sciatic exacerbations are associated with incontinence of urine and faeces and because of these incidents, Ms Sutherland rarely leaves the house. He said she will only drive if she goes to a medical appointment;
(g)Ms Sutherland has severe COAD, such that she experience shortness of breath if walking more than 50 metres. He said this is “permanent, unresponsive to medications and worsening”;
(h)Ms Sutherland has ischaemic heart disease having had a previous myocardial infarction but does not have ongoing cardiac ischaemia and does not currently have angina; and
(i)Ms Sutherland has been diagnosed by colonoscopy as having ulcerative colitis. This worsens any bowel symptoms with additional cramping diarrhoea. She takes Mesalazine and oral prednisolone to treat this condition.
A second NDIA “NDIS Access Request – Supporting Evidence Form” was completed by Ms Sutherland’s treating physiotherapist, Ms Emily McCarthy, on 20 September 2021 and submitted to the NDIA (‘Second SEF’).[9] Ms McCarthy records Ms Sutherland’s primary impairment as “spinal injury – severe stenosis” which she has had since 1999. Ms McCarthy states that her impairment is degenerative and likely to be lifelong with the symptoms worsening over time. Ms McCarthy states that Ms Sutherland also has other significant impairments including “heart disease, thyroid disease, ulcerative colitis, chronic pain”. Ms McCarthy states that Ms Sutherland’s other impairments include “diverticulitis Osteoarthritis, Inflammatory bowel disease, chronic gastritis”. At the hearing, Ms Sutherland told the Tribunal she continues to have diverticulitis through her entire semi-colon. Ms Sutherland said this has been confirmed in colonoscopy reports. Ms McCarthy stated that Ms Sutherland requires special equipment, home modifications and assistance from others, to be mobile, and in relation to the activity of self-care.[10] She also said that Ms Sutherland requires assistance from other persons in relation to the activity of self-management.
[9] Ibid , T8.
[10] T-Docs, T8.
On or shortly before 29 September 2021, Ms Sutherland was provided with two scooters,[11] a smart lifter, and shower stool with arms under the Victorian State-wide Equipment Program (‘SWEP’).[12] Ms Sutherland explained at the hearing that the smart lifter is a hoist which is in the back of her car. She said she still has the shower stool and continues to use it.
[11] At the hearing, Ms Sutherland said that at first, they had provided her with a large scooter when she was living in Werribee but then she switched it over to a scooter which “more affordable and could be managed in the back of the car”.
[12] Ibid, T9.
On 24 October 2021, Dr Schon sent an email about Ms Sutherland’s NDIS eligibility to a NDIA staff member (‘Dr Schon’s October 2021 Email’).[13] He states in this email that the exact level of Ms Sutherland’s spine, which needs “decompression”, is unable to be determined because a spinal cord stimulator has been inserted, being a contraindication for having definitive investigations, such as magnetic resonance imaging (‘MRI’) performed.
[13] Ibid, T10
Dr Schon stated that Ms Sutherland had “emphysema” and “severe ischaemic heart disease having had a heart attack and a stent inserted in 2018”. When asked about this condition at the hearing, Ms Sutherland confirmed that this occurred in 2018. Ms Sutherland said that it has since been fine and that she is “not dead yet”. Dr Schon stated that Ms Sutherland’s atherosclerosis underlying her coronary artery disease is progressive. When Ms Sutherland was asked at the hearing if her heart condition was getting worse, she responded “To be honest, I don’t know. I don’t think so”. She said that it was not “well controlled with medication” as had been suggested. Dr Schon stated that this condition could not be treated because Ms Sutherland is allergic to cholesterol-lowering medication. Dr Schon stated this makes her “unfit to undertake and major orthopaedic surgery”. At the hearing, Ms Sutherland agreed with this and asserted that she is “not a candidate for surgery”. Dr Schon stated that this has been confirmed by Ms Sutherland’s treating neurosurgeon, Professor Kate Drummond, Royal Melbourne Hospital, who had advised that the majority of Ms Sutherland’s axial back pain “will not really be surgically amenable”.
In regard to the opinion of Professor Drummond, the Tribunal notes that on pages 170 and 171 of her report dated 5 October 2011, that she refers to Ms Sutherland’s axial back pain not being surgically amenable, however, she mentions that “new unilateral pain” may be amenable to surgery if she had specific nerve root compression. Professor Drummond suggested that Ms Sutherland have a myelogram and be reviewed by a surgeon with subspeciality interest in chronic spinal pain, either as an inpatient or an outpatient. Professor Drummond mentioned that she could arrange this with Professor Peter Teddy and noted that Ms Sutherland would “go away and have a think about it”.
At the hearing, the Tribunal asked Ms Sutherland what had happened upon receiving this advice from Professor Drummond. Ms Sutherland told the Tribunal that she had not been to see Professor Drummond since 2011 because Professor Drummond had told her there was no reason for her to return to see her unless Ms Sutherland was “100 per cent in the wheelchair and she would look to see if she could get me out of it”. Ms Sutherland said that Professor Drummond is the head of neurosurgery at the Royal Melbourne Hospital and that she is “not sure anyone else could give me a better opinion”. Ms Sutherland said that if something were available, she “would jump on it”. At the hearing, Ms Sutherland said that she has had one myelogram previously in the United States and it was “a painful procedure” and she “would not have another one”. Ms Sutherland asserted that it was an “archaic way of looking at nerves and you literally feel that your whole body is burning” and it is “absolutely horrible”. The Tribunal considers that Ms Sutherland has a legitimate reason to refuse the investigative medical procedure as suggested by Professor Drummond, based on Ms Sutherland’s personal experience with the suggested procedure in the past.
In Dr Schon’s October 2021 Email, he confirmed that Ms Sutherland experienced “intermittent neural claudication” causing her to lose power in her right leg. At the hearing, Ms Sutherland said that when this occurs, she will lose power in both legs, “sometimes together or separately”. She said she will fall, become incontinent and could not get up. Ms Sutherland said she will have “60 seconds’ warning” as she will experience a burning sensation in her spine. She explained that if she is able to sit down, she can avoid the fall. Ms Sutherland said she has fallen over before in the supermarket, Kmart, and other places, and if she has anything in her bladder or bowel, “it will come out”. Ms Sutherland said that it might take a few minutes or up to an hour for the nerve to “release” and after it does, she said she can usually get back up. She said she is unable to do so before the nerve releases. Ms Sutherland told the Tribunal that the intermittent neural claudication can happen from anywhere between two to ten times per week and that it is random. The Tribunal accepts this evidence. Ms Sutherland remarked at the hearing “Being paraplegic part of the time is worse than being paraplegic all of the time. It just does it”. She said that she will fall, become incontinent and cannot get up. She said the falls happen about eight times a year. Again, the Tribunal accepts this evidence and finds accordingly.
Dr Schon said that Ms Sutherland could only sit and stand for up to 15 minutes and that her lumbar canal stenosis is “permanent and definite”. Dr Schon states that Ms Sutherland is “socially isolated because of her back impairment and also from pathological grief/depression related to the death of her late husband from metastatic cancer after a prolonged illness”[14] and that she required assistance to access the community and to socialise. At the hearing, Ms Sutherland gave evidence that she agreed with this assessment. She said that she was socially isolated and required assistance to access the community and to socialise.
[14] Ibid, T10.
On 26 October 2021, Ms Sutherland sent an email to the NDIA describing her lived experience (‘First SLE’).[15] She described herself as having “stage 4 degenerative disk disease” which is “incurable” and will “get worse, never better”. She said she has had it for over 20 years, alongside other health issues. She said she needs help to manage her life and that she is “completely” on her own, with all of her family having died. At the hearing, Ms Sutherland clarified that the only family she has had in Australia was her late husband and that her brother lived in the United States.
[15] T-Documents, T11. “SLE” refers to Statement of Lived Experience.
When describing her daily life, Ms Sutherland said that she goes from the bed to her chair in the mornings for coffee and to take her medication, and that is where she will remain for most of her time. She said she is unable to collect her mail or put out her rubbish bins. She said she cannot stand or walk unaided for more than a few minutes and needs help with “personal care, home care, garden and home maintenance”. She said she needs “aids and equipment” that could assist her, being things she is unable to afford. She said she requires therapy and physical exercise which she cannot manage alone. Ms Sutherland referred to a recent incident at the supermarket where her legs “failed” and she fell to the concrete in front of the door. She said she sat there, “wet from bladder leakage” until her legs “could work again”. She said this happens randomly and she never knows when it will occur. She described another collapse when visiting the dentist when she fell getting out of the car, requiring her to reschedule the appointment as she was “too shaken to proceed”. She said she required help but did not have any. At the hearing, Ms Sutherland added that she was cut and bleeding from this fall and that she expected the dentist would proceed with the appointment but instead, they dressed her wounds and sent her home.
Dr Schon’s report about Ms Sutherland’s spinal condition is confirmed in a report dated 22 January 2021 following a CT scan of her lumbar spine.[16] The radiologist concluded that Ms Sutherland has severe spondylotic change involving her lumbar spine with a moderate to marked scoliosis. The radiologist described “severely multilevel facet joint arthropathy” and “severe left L5 nerve root” which “may contribute to the patient’s left sided symptoms”. The radiologist reports that there is a “very tight right neural exist foraminal stenosis at L3/4 and L2/3”. At the L5/S1 level, the radiologist described a “complete loss of the intervertebral disc height and endplate sclerosis” and that the left facet joint is “severely degenerate”.
[16] T-Document, T14.
Decision Under Review
On 28 October 2021, a delegate of the CEO decided not to grant Ms Sutherland access to the NDIS, on the basis that she did not meet the access criteria set out in s 21 of the NDIS Act, because she did not meet;
(a)the “disability requirements” under s 24 (specifically, s 24(1)(b), which requires Ms Sutherland to have an impairment that is permanent, or likely to be permanent); or
(b)the “early intervention” requirements under s 25 of the NDIS Act.[17]
[17] T-Documents, T12.
On 28 October 2021, Ms Sutherland sought internal review of this decision by a “reviewer” of the NDIA under s 100(6) of the NDIS Act.[18]
[18] T-Documents, T13.
On 25 January 2022, the reviewer confirmed the earlier decision not to grant Ms Sutherland access to the NDIS (‘Decision Under Review’).[19] The reviewer accepted that Ms Sutherland met the “age requirements” under s 22, and the “residency requirements” under s 23 of the NDIS Act, but not the “disability requirements” under s 24, nor the “early intervention requirements” under s 25 of the NDIS Act.
[19] T-Documents, T2.

On 21 June 2022, Ms Sutherland sought review of this decision by the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal (‘Tribunal’) under s 103 of the NDIS Act.[20] The AAT “Application for Review of Decision” form was lodged on Ms Sutherland’s behalf by her disability advocate, Ms Heidi Lachs, Regional Disability Advocacy Service (‘RDAS’).
[20] T-Documents, T1.
EVIDENCE AND SUBMISSIONS
On 27 July 2022, the NDIA lodged with the Tribunal a set of documents pursuant to s 37 of the AAT Act (‘T-Documents’). Following consultation with Ms Sutherland, the NDIA lodged a joint hearing tender bundle on 17 July 2023 (‘Joint HTB’). The Tribunal accepted these sets of documents in their entirety, as evidence in this proceeding.
On 2 December 2022, Ms Sutherland lodged a further statement describing her lived experience and attaching a set of answers to questions as posed by the NDIA (‘Second SLE’).[21]
[21] Joint HTB, A5; A6.
On 8 May 2023, Mr Travis Kreeck, Occupational Therapist, issued a detailed report following a functional capacity assessment conducted by him on 19 April 2023 following a referral by Ms Lachs (‘Mr Kreeck’s Report’).[22]
[22] Joint HTB, A7.
Ms Sutherland also lodged with the Tribunal several letters of support/witness statements from several lay persons including:
(a)her brother, Mr MB, who described what he observed when he had visited and stayed with Ms Sutherland for 90 days over Christmas 2022;[23]
(b)Ms KB,[24] who lives in Point Cook, who states she has known Ms Sutherland for ten years. Ms Boardman said she had stayed with Ms Sutherland for a number of days numerous times in 2023;[25]
(c)Ms KM[26], who lives in Corio, who states she has known Ms Sutherland for ten years.[27] At the hearing, Ms Sutherland said she talks to Ms KM frequently on the phone and on video calls but she has not seen her face to face since before COVID-19 and that she is “fighting terminal cancer”;
(d)Ms MN[28] (letter dated 1 July 2023) who states she is Ms Sutherland’s neighbour and provides an account of several falls and other incidents requiring her to provide Ms Sutherland with personal assistance.[29] Ms Sutherland told the Tribunal Ms MN is both her friend and her neighbour.
[23] Joint HTB, A8, A9 and A10.
[24] Full name not cited.
[25] Ibid, pp.63-66.
[26] Full name not cited.
[27] Ibid, pp.67-71.
[28] Full name not cited.
[29] Ibid, pp.72&73.
At the hearing, Ms Sutherland was asked if there was a reason why her support worker, C, had not prepared a witness statement in this proceeding. She said that C’s agency “concerned about legal ramifications and they would not comply with that” but that “if it were up to C she would write something immediately”.
Ms Sutherland also lodged a set of her diary entries from 18 May 2023 to 3 July 2023.[30] At the hearing, Ms Sutherland said she had missed out two or three days but otherwise, for each day she had written down what she had done in a “concise and shorthanded manner as possible”.
[30] Joint HTB, A12.
The NDIA arranged for an independent expert, Ms Susan Barbuto, Consultant Occupational Therapist, to undertake a functional capacity assessment of Ms Sutherland. Ms Barbuto issued a detailed report dated 17 April 2023 ('Ms Barbuto’s Report’).[31]
[31] Joint HTB, A14.
Coolaroo Clinic (Metro Pain Group), My Clinic (Werribee Village), Yarrawonga Denis Medical Group, North Health Wangaratta, Parkville Neurosurgery, and I-MED Radiology, each produced documents in answer to summonses issued by the Tribunal at the request of the NDIA. The documents produced under those summonses were extracted by the parties and included in the Joint HTB.[32] These documents in the Joint HTB have been considered by the Tribunal.
[32] Joint HTB, A15; A20 .
On 17 July 2023, the NDIA lodged its statement of facts, issues, and contentions (‘NDIA’s SFIC’).
On 19 July 2023, Ms Sutherland lodged a statement in reply to the NDIA’s SFIC (‘Ms Sutherland’s Reply Statement’).
At a directions hearing in this matter, the parties indicated that they consented to this application being heard and decided “on the papers”. Following a review of the material lodged by the parties, the Tribunal considered it appropriate to list this matter for a hearing, by telephone, on 20 September 2023 which would provide an opportunity for certain matters arising from the parties’ evidence and submissions to be clarified. At this hearing, Ms Sutherland was represented by Ms Lachs and the NDIA was represented by Ms Jessica Fenech, Associate, HWL Ebsworth Lawyers.
The only witness called to give evidence at the hearing on 20 September 2023 was Ms Sutherland.
In this proceeding, the NDIA contended, in its SFIC, as follows in relation to whether Ms Sutherland met the “early intervention requirements” under s 25 of the NDIS Act (footnotes omitted):
109. The Applicant will meet the early intervention requirements in s 25 if she satisfies s 25(1)(a), s25(1)(b) and s 25(1)(c), and s 25(3) is not engaged. The Respondent contends that the early intervention requirements are not met in the Applicant's case.
110. The Respondent accepts that the Applicant satisfies the criterion in s 25(1)(a) because she has permanent neurological and physical impairments attributable spinal stenosis and stage 4 degenerative disc disease, physical impairment attributable to chronic obstructive airways disease and physical impairments attributable to hypothyroidism.
111. The evidence demonstrates that that early information support would not likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Further, the evidence does not identify early intervention support, demonstrate the likely trajectory and impact of the Applicant's impairments over time and the potential benefit of early intervention support (rule 6.9).
112. The evidence demonstrate that the provision of early intervention supports would not likely have any of the benefits identified in s 25(1)(c). The evidence demonstrates that the Applicant's impairments are longstanding.
113. Further, even if the Applicant were deemed to meet the criteria in s 25(1), the prohibition in s 25(3) would apply, in circumstances where:
(a)no early intervention supports have been identified as appropriate or relevant in the Applicant's case; and
(b) the other supports sought by the Applicant or proposed for her by others are more appropriately funded or provided through other service systems, including, for example, the health system. The Respondent repeats and relies on paragraph 107.
114. The Respondent therefore contends that the Tribunal should not be satisfied that the Applicant meets the early intervention requirements in s 25(1), and s 21(2)(c)(ii) is not met.
At the hearing on 20 September 2023, the Tribunal identified that there was a lack of particularisation in the NDIA’s submissions about its contention that s 25(3) applied to Ms Sutherland and so excluded her from satisfying the requirements under s 25 of the NDIS Act. The Tribunal decided that it was appropriate to direct that the NDIA lodge further submissions (in the form of closing submissions) to articulate the basis of its contentions about the application of s 25(3) of the NDIS Act in this matter, and that Ms Sutherland would be given an opportunity to reply to those further submissions. The Tribunal highlighted that it did not, at that time, have any evidence placed before it by the NDIA relating to the other general services systems, such as the SWEP or My Aged Care and their relevant respective program manuals and fee schedules, that the NDIA had contended were more appropriate systems to provide early intervention supports to Ms Sutherland rather than under the NDIS.
On 22 September 2023, Ms Sutherland lodged a three-page submission regarding the early intervention requirements under s 25 of the NDIS Act and additional evidence.
On 6 October 2023, the NDIA lodged closing submissions. Those submissions address various provisions in both s 24 and s 25 of the NDIS Act. The NDIA also lodged a supplementary bundle of documents of further evidence sought to be relied upon by Ms Sutherland and by the NDIA comprising 153 pages (‘NDIA’s Supplementary Documents’).
On 11 October 2023, Ms Sutherland lodged a response to the NDIA’s Closing Submissions (‘Ms Sutherland’s Closing Reply’).
Given the volume of new evidence and submissions lodged by the parties, the Tribunal sought an indication from them as to whether either or both sought a further resumed hearing to address the new evidence and submissions. Ms Sutherland indicated that she would like the matter to be listed for a resumed hearing. In response to this request, the matter was listed for a resumed hearing on 17 November 2023.
At the resumed hearing on 17 November 2023, Ms Sutherland raised concerns about the application process, specifically, that she was “flying by the seat of [her] pants” and had been thrown into a “very unfair situation” which had “caused [her] trauma in the process” by having to deal with lawyers without being legally represented herself. She said she did not believe the lawyers had acted in a way that lawyers should act. At the hearing, the Tribunal acknowledged that Ms Sutherland was expressing that that she had had a negative experience. The Tribunal explained that it did not and still does not have the power to appoint a legal representative to assist an unrepresented party. Ms Sutherland said she did not have an issue with the Tribunal but more that she has a problem with the system itself, and that she would raise it with the legislators.
The NDIA indicated it did not wish to make any further contentions and the resumed hearing concluded.
LEGISLATIVE FRAMEWORK
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)the “disability requirements” under s 24 (as set out in paragraph 57 below) or the “early intervention requirements” under s 25.
ISSUES
The NDIA accepts that Ms Sutherland meets both the “age requirements” and “residence requirements” under ss 22 and 23 of the NDIS Act respectively. The Tribunal finds accordingly.
The issues arising for determination by the Tribunal in this application are:
(a)whether Ms Sutherland meets the “disability requirements” under s 24 of the NDIS Act; or alternatively,
(b)whether Ms Sutherland meets the “early intervention requirements” under s 25 of the NDIS Act.
Ms Sutherland’s position is that she meets the “disability requirements” under s 24 or, alternatively, the “early intervention requirements” under s 25 of the NDIS Act in respect of any one or more of the Claimed Psychosocial Impairments and the Claimed Physical & Neurological Impairments.
Regarding the “disability requirements” under s 24, the NDIA accepts that Ms Sutherland satisfies s 24(1)(a), s 24(1)(b) (in relation to Ms Sutherland’s neurological and physical impairments attributable to spinal stenosis and stage 4 degenerative disc disease and physical impairments attributable to her conditions of COAD and hypothyroidism but not in relation to her sensory impairment attributable to her condition of chronic pain), and s 24(1)(d) of the NDIS Act in respect of the Claimed Psychosocial Impairments and the Claimed Physical & Neurological Impairments. However, the NDIA contends that sub-ss 24(1)(c) and (e) are not met in respect of these impairments. The Tribunal will focus its consideration primarily on these two subsections but it is required to satisfy itself that the other mandatory requirements under s 24(1) of the NDIS Act are also met.
In relation to sub-s 24(1)(c), Ms Sutherland confirmed at the hearing that she contends that any one or more of these impairments have resulted in a “substantially reduced functional capacity” in the prescribed activities under this subsection, of “self-care”, “social interaction” and “self-management”.
Regarding the “early intervention requirements” under s 25, the NDIA accepts that sub-s 25(1)(a) has been met in respect of these impairments, but not sub-ss 25(1)(b) and (c). The NDIA further contends that sub-s 25(3) of the NDIS Act applies to Ms Sutherland and so excludes her from meeting the “early intervention requirements” under s 25.[33]
[33] Refer NDIA’s SFIC, [8] – [10].
The NDIA contends that “[w]hilst there is no formal onus of proof upon the Applicant, as the Full Court explained in Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 (‘Beezley’), [68], the Applicant must put forward evidence and information sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements in s 24 or s 25 are met. If the Tribunal is not so satisfied, the Applicant cannot succeed (relevantly, see HPSC and National Disability Insurance Agency [2021] AATA 727, [85])”. The Tribunal considers that the relevant judicial observation made by the Full Court of the Federal Court in Beezley at [68], as reproduced below, is correct and sets out the relevant principle to be taken into account and applied by the Tribunal in this matter (bold emphasis added):
In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.
ACCESS RULES AND POLICY GUIDANCE
Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act, or necessary or convenient to be prescribed, in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which, or criteria to be applied, in assessing whether any of the disability or early intervention requirements are met under ss 24 or 25 respectively, of the NDIS Act.
Pursuant to s 209(1) of the NDIS Act, in conjunction with s 27, the Minister has issued the following rules by legislative instrument: National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Access Rules’).
On 1 February 2024, the NDIA updated its policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS[34] (‘Access Guidelines’). The Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime. A copy of this version of the Access Guidelines was sent to both parties prior to handing down this decision with an invitation to the parties to make submissions about this updated version. No further submissions were received.
WHETHER MS SUTHERLAND MEETS THE “DISABILITY REQUIREMENTS”
[34] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) <>
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
Section 24(1)(a) - Disability
The first criterion, under s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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”.
In National Disability Insurance Agency v Davis,[35] Mortimer CJ made the following judicial observation (emphasis added):
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[35] [2022] FCA 1002, [69].
The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects s 24(1)(a) of the NDIS Act (footnotes omitted):[36]
[36] Access Guidelines updated on 26 June 2023, pp. 6-7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.

The NDIA, in its SFIC dated 17 July 2023 lodged before the hearing, informed the Tribunal that it accepted that Ms Sutherland has “a disability or disabilities attributable to physical and neurological impairments arising from her spinal stenosis and stage 4 degenerative disc disease, a physical impairment arising from their chronic obstructive airways disease, a physical impairment flowing from their hypothyroidism, a neurological impairment from their ulcerative colitis and a cognitive impairment from their pathological grief reaction and a sensory impairment from pain”.[37]
[37] NDIA’s SFIC, [23].
The Tribunal concludes that Ms Sutherland has a “disability” within the meaning of sub-s 24(1)(a) of the NDIS Act, arising from her Claimed Psychosocial Impairments and Claimed Physical & Neurological Impairments.
Section 24(1)(b) – Permanency
The second mandatory criterion, under s 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”. The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment”.
Rule 5.5 provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 provides that an impairment “may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent”. This rule also provides that:[38]
The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency (or likely permanency) to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
[38] The Tribunal notes that in National Disability Insurance Agency v Davis [2022] FCA 1002 at [64] – [75] that Mortimer CJ raised a question about the validity of Rules 5.4 and 5.6 being exclusionary in effect. No submission was made by either party in this application as to the validity of these two rules.
Rule 5.7 provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
The NDIA contended, in its Closing Submissions, that Ms Sutherland does not have a permanent sensory impairment arising from chronic pain because there is insufficient evidence to support such a finding and that Ms Sutherland had “not put forward evidence that her sensory impairment is amendable(sic) to surgery as recommended by Dr Teddy and whether an alternative review option is available”. The NDIA contended that Ms Sutherland’s evidence demonstrated that this impairment (that is, the sensory impairment) may require medical treatment before a determination can be made about whether it is permanent and in particular, that Ms Sutherland has not completed the myelogram which would determine if the impairment were amenable to surgery.[39]
[39] NDIA’s Closing Submissions, [4] – [7].
As addressed in further detail below, the Tribunal does not consider that Ms Sutherland’s refusal to undergo a myelogram was unreasonable based on her prior experience which she gave detailed evidence about at the hearing, as set out above in paragraph [16], and which was not challenged by the NDIA’s lawyer. The Tribunal considers that its decision in this application for review does not turn on any finding about this factual matter, as the Tribunal is satisfied that “disability requirements” under s 24(1) of the NDIS Act are met, based solely on a consideration of the functional impairments arising from the Claimed Physical & Neurological Impairments without the need to consider impacts arising from any further sensory impairment she may have. The NDIA has accepted and the Tribunal has found that Ms Sutherland has the Claimed Physical & Neurological Impairments, as well as the Claimed Psychological Impairments – see paragraph [23] of the NDIA’s SFIC.
In relation to Ms Sutherland’s Claimed Physical & Neurological Impairments, at the hearing she was asked whether she was receiving treatment from a physiotherapist. Ms Sutherland confirmed that she was attending five bulk billing sessions per year under the Medicare scheme. She said that she received physical therapy which is aimed at maintaining her current level of ability and to reduce the pain. She said the physiotherapist has given her an exercise program, she has utilised the machines, and has provided her with therapeutic massages to release the spasms. Ms Sutherland said she does several exercises on a daily basis. Ms Sutherland was asked about the exercise machine reported to be in her home. It is an upright gym machine with weights and pullies. She said she does not use any weights and will “flip my feet under and do leg lifts”.
Ms Sutherland gave evidence at the hearing that she has not received any machines for her respiratory issues, such as a continuous positive airway pressure (‘CPAP’) machine. Ms Sutherland said she still smokes about five cigarettes per day, and that she has tried to quit.
Ms Sutherland confirmed she is still being treated by Ms Dowell, General Practitioner, who prescribes her medications.
Ms Sutherland was asked about the reference to Dr Brett Todhunter, Pain Management Specialist, wanting to review the spinal stimulator inserted in her spine so as to assess whether to remove it. Ms Sutherland explained to the Tribunal at the hearing that this device had an expected life span of about 15 years and has been in her body for about this period of time. At the hearing, Ms Sutherland said she was due to see Dr Hilton Sheppard, Pain Management Specialist, in Albury on 20 October 2023 about this issue.
Ms Sutherland informed the Tribunal that she is also due to see a gastric surgeon, about a tumour on her pancreas but she needs transport in order to be able to get there. She said she does not believe it to be cancerous. She said that this procedure is going to cost about $4,000 so she is awaiting a referral to the Northern Hospital. It would seem her doctors are not treating this medical issue as urgent.
At the hearing, Ms Sutherland gave evidence that she continues to experience frequent cramping (on average once a day) arising from her condition of ulcerative colitis. She says she continues to take Mesalazine and Prednisolone to reduce inflammation and pain in the body. Ms Sutherland said she continues to undergo hormone replacement therapy and this will remain the case as her “thyroid is gone”.
Beyond the matters referred to above, it was not clear from the evidence that Ms Sutherland is awaiting any other pending surgical or medical intervention. Most of her conditions have been longstanding with many of them dating back to when she was living in the United States.
In the NDIA’s SFIC lodged with the Tribunal before the hearing, it accepted that Ms Sutherland’s “neurological and physical impairments attributable to spinal stenosis and stage 4 degenerative disc disease, physical impairment attributable to chronic obstructive airways disease and physical impairments attributable to hypothyroidism are permanent impairments for the purpose of s 24(1)(b)”.[40] The NDIA contends, in effect, that the Tribunal should not be satisfied that Ms Sutherland has any further impairments arising from her conditions of ischaemic heart disease, ulcerative colitis, chronic pain, or pathological grief reaction.
[40] NDIA’s SFIC, [30].
The Tribunal is satisfied on the evidence, and it is accepted by the NDIA, that Ms Sutherland’s neurological and physical impairments attributable to spinal stenosis and stage 4 degenerative disc disease, physical impairment attributable to chronic obstructive airways disease, and physical impairments attributable to hypothyroidism, are permanent, or likely to be permanent, impairments for the purpose of s 24(1)(b) of the NDIS Act. The Tribunal does not consider it necessary to consider the further claimed impairments because for the reasons detailed below it considers that Ms Sutherland meets the criteria under s 24(1) of the NDIS Act based on these impairments alone. The Tribunal will refer to the impairments described in this paragraph collectively as the ‘Permanent Impairments’.
Section 24(1)(c) – Substantially reduced functional capacity
The next step is for the Tribunal is to consider whether one or more of those Permanent Impairments have resulted in a “substantially reduced functional capacity” of Ms Sutherland to undertake any or all of the activities prescribed under s 24(1)(c) of the NDIS Act, specifically, “social interaction”, “self-care”, “self-management”, “communication”, “learning” and “mobility” (to be referred to collectively as the ‘Prescribed Activities’).
General approach
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by a person (footnotes omitted):[41]
[41] Access Guidelines, 8-9.
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
•Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
•Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
•Learning – how you learn, understand and remember new things, and practise and use new skills.
•Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
•Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
•Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
•a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
•assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
The Tribunal is not bound by the descriptions provided in the guidance as to the six prescribed activities in s 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. However, broadly speaking, the Tribunal considers that those definitions serve as a good starting point.
As observed by Justice Mortimer (as her Honour was then) in Mulligan v National Disability Insurance Agency (‘Mulligan’),[42] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:
[42] (2015) 233 FCR 201, [55]-[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice the Federal Court of Australia.
…No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for.
The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster (‘Foster’),[43] decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (that is, in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed.[44] The Full Court in Foster observed at [64] that (emphasis added):
[43] [2023] FCAFC 11.
[44] Foster, at [65].
[64]In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
[65] Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
The judicial authority in Foster calls for the Tribunal to make an assessment of the person’s capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, as a whole. The NDIA contends that the interpretation by the Full Court of the Federal Court in Foster stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity.[45]
[45] NDIA’s SFIC, [28].
Rule 5.8 of the Access Rules elaborates upon when an impairment is taken to have resulted in a “substantially reduced functional capacity” to undertake any one or more of the Prescribed Activities. This rule provides as follows:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
As highlighted by the NDIA’s SFIC, the Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in Rule 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
As cautioned by her Honour Chief Justice Mortimer in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under s 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of Rule 5.8 of the Access Rules.[46] Instead, her Honour made clear that the statutory task required the decision-maker to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[46] Mulligan, at [77].
The NDIA contends as follows:
33. The Respondent submits that the current evidence does not indicate that the Applicant has any reduced capacity in relation to communication or learning. In relation to mobility, the report prepared by Ms Josephine Gibbs-Dwyer (Occupational Therapist and Accredited Hand Therapist) dated 12 June 2023 (Gibbs-Dwyer report) outlines that the Applicant is 'independent with mobility', although can 'only walk short distances due [to] pain caused by her arthritis joint stiffness' (p 8). The Applicant's Statement of Facts, Issues and Contentions does not address her functional capacity in relation to the domains of communication, learning, or mobility (see [48] - [78]). The Respondent does not consider that the Applicant has a substantial reduction in functional capacity in relation to communication, learning, or mobility and has not addressed these areas further in this Statement of Facts, Issues and Contentions.
34. The Respondent accepts that the evidence supports that the Applicant’s impairments affect her functional capacity in relation to self-care, social interaction, and self-management. However, the Respondent submits the evidence does not indicate that the Applicant’s capacity is substantially reduced. The Respondent's position in relation to self-care, social interaction, and self-management are addressed in further detail below.
The Tribunal has considered the following evidence about the impacts of Ms Sutherland’s Permanent Impairments on her functional capacity, including:
(a)the evidence of Ms Sutherland:
(i)contained in the First SLE, Second SLE, and Ms Sutherland’s Reply Statement; and
(ii)given orally at the substantive hearing of this matter;
(b)further supporting expert evidence submitted by both parties in this matter, including Ms Kreeck’s Report and Ms Barbuto’s Report;
(c)the observations of her treating doctors as set out in the summonsed documents.

This evidence will be referred to as relevant as the Tribunal considers whether one or more of the Permanent Impairments resulted in a substantially reduced functional capacity in any one or more of the Prescribed Activities under s 24(1)(c) of the NDIS Act.
Self-care
Self-care is described in the Access Guidelines as follows:[47]
[47] Access Guidelines, 8.
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.
The task of “eating” if viewed through a narrow lens, can involve the action of being able to transfer the food on a person’s plate into their mouth, which may involve cutting the food on the plate. The task of “eating” if viewed through a wider lens, can involve the sourcing of the food, say from the supermarket, preparing the meals and then transferring the food into a person’s month. The Tribunal takes the view, for an adult participant, that “self-care”, as one of the Prescribed Activities, involves both the cooking or preparation of the meals and transferring the food into the person’s mouth but does not include the action of planning for meals and acquiring the food (such as, shopping for food and stocking the fridge). The Tribunal considers those latter tasks form part of the activity of “self-management”.
There is no evidence that Ms Sutherland has any difficult with feeding herself in terms of transferring food or drink from a plate/bowl/cup sitting on the table, into her mouth. To the contrary, Ms Sutherland gave evidence at the hearing that the function of her arms is “okay”, in fact, she is able to lift herself from a sitting to standing positions using her arms and is able to lift herself into and out of the bath using her arms. In her Second SLE, Ms Sutherland said that she might make a cup of tea and if she is hungry, have something to eat. She said that generally she does not eat, because the medication she is on can make her feel nauseous. She said if she eats, she will make it “quick and simple”, as she cannot stand for long periods of time. Ms Sutherland said that on some days she will go all day without eating and when she eats, that it is minimal and not enough to nourish her.
At the hearing, Ms Sutherland gave evidence that she would like to receive “meals on wheels”. She said that she had called her local council to request “meals on wheels” and was informed those services were not available where she lives. When asked if she had made this request in writing, she answered in the negative. Ms Sutherland said she was told the only option available to her was to receive frozen meals from Yarrawonga Hospital. Ms Sutherland said that instead, she buys pre-prepared meals from the supermarket – “whatever is handy and requires very little effort”. At the hearing, she said that one year ago she would make a basic meal in her kitchen but is not able to do so anymore. She said her “nutrition has suffered desperately”.
Even though the types of meals Ms Sutherland has, are limited to frozen meals, the Tribunal finds that she is able to independently complete the task of eating, forming part of the activity of “self-care”.
In the Second SLE, Ms Sutherland states that each day for her is different depending upon how much sleep she is able to get and how much pain she is in. She said she does not have a daily schedule. She said her body will decide when she wakes up, and that it can be at 3am in the morning. She said she might stay up or go back to bed (depending on the time she wakes up). When she wakes up, she says she will go into the lounge room, sit in her chair, and take her medication. Ms Sutherland says on most mornings, she feels “lost” and wonders “why the hell I am even here”. She said the only light in her life is her dog, “Freedom”.
At the hearing, Ms Sutherland gave evidence that currently she receives two hours of support worker assistance per week. This consists of two one-hour visits per week by a support worker by the name of “Cathy”. Ms Sutherland said that Cathy will help her with personal care, shopping or “whatever”. Ms Sutherland said she will take a bath or shower while Cathy is present. Cathy does not physically assist Ms Sutherland with bathing or showering but is present in the house in case Ms Sutherland falls while bathing or showering.
At the hearing, Ms Sutherland said that she has a car and a driver’s licence and is able to drive. She said that she experiences difficulty getting into and out of the car and that her car has been modified by the insertion of a swivel seat, lumbar support, and handle in her car to help with transfers in and out of the car. Ms Sutherland said she only drives when she needs to and this will be once or twice a month when she needs to attend the dentist or doctor. It would seem from this evidence that mostly, Ms Sutherland is able to attend to some important tasks regarding her health, such as taking herself to dentist and doctor appointments. Her evidence was that her arms are “okay” so she is also able to brush her teeth, wash her body and groom her hair. Ms Sutherland confirmed at the hearing she is able to manage and take her own medication independently.
However, there are some significant matters of concern to the Tribunal about Ms Sutherland’s ability to independently undertake tasks relating to her health. Ms Sutherland gave evidence about being fearful of falling due to her leg collapsing randomly from time to time due to the neurological impacts of her condition of spinal stenosis. Ms Sutherland’s evidence is that this has resulted in her infrequently (that is, about once a fortnight) bathing (and/or showering, although she said she only rarely showers as she prefers the bath as it offers her pain relief), because she will wait until someone is in the house with her, such as Cathy or her neighbour, before she will take a bath or shower.
Ms Sutherland gave evidence, when asked, that she wears a personal alarm which she wears while in the shower, but she said it will take a long time for “them” to respond due to her location. Ms Sutherland gave evidence that she had called “them” before for assistance and it had taken them longer than one hour to respond. When Ms Sutherland was asked at the hearing when she had experienced her last fall, requiring her to activate the personal alarm, she said it was a few months prior and that as a result of the fall, her leg had filled with fluid causing her to activate the alarm. Ms Sutherland was asked how many times she had called for help using her personal alarm in the last nine months. She said this had occurred about three or four times. She explained that she will only call for help if she thinks she has injured something or has any symptoms to do with her heart, but otherwise, she said “does not bother them”. The Tribunal notes that Ms Sutherland was formerly a palliative care nurse.
Ms Sutherland said that between baths (or showers), at other times she will use her bidet, a sponge bath or baby wipes to keep herself clean. At the hearing Ms Sutherland confirmed that she experiences both urinary and bowel incontinence, but that currently it is mostly bowel incontinence. Ms Sutherland said that the last time this happened was two or three weeks ago and that she has experienced urinary tract infections. Ms Sutherland told the Tribunal that her “nerve impingement is leading to bowel incontinence rather than urinary incontinence”.
Ms Sutherland described her bowel incontinence as “constant seepage” and that she has no control over what comes out at any time. Ms Sutherland said she does not always wear continence aids while she is in her home because they chafe her and are uncomfortable. Instead, she said she will wear standard underwear and use her bidet as needed. Ms Sutherland also gave evidence that she experiences total involuntary bowel and bladder emptying when she collapses randomly from time to time. The Tribunal is concerned that without the assistance of a support worker to ensure that Ms Sutherland is able to safely bathe or shower properly following such events, and in light of her reported constant bowel “seepage”, the Tribunal considers that Ms Sutherland is not able to adequately clean herself without assistance by another person being at her home to allow her to feel safe to have a bath (or shower) daily, or at least, once every two days. These limitations potentially giving rise to hygiene-related health issues for Ms Sutherland such as the urinary tract infections Ms Sutherland says she has experienced in the past.
The Tribunal is also concerned by Ms Sutherland’s indication that she has had to cancel attending certain medical appointments in the past, on account of waiting for her friend from Point Cook to be available to make a journey to her home, to assist her to attend those medical appointments/procedures. An example of this was her need to see Dr Sheppard in Albury for the review of her spinal stimulator – see paragraph [73] above.
At the hearing, Ms Sutherland said her friend, Ms KB, from Point Cook made such a trip a few months ago, when Ms Sutherland underwent an endoscopic retrograde cholangiopancreatography (‘ERCP’) requiring a tube to be inserted into her throat to look at her pancreas. Ms Sutherland said that they were unable to see what they wanted to see so they have recommended a second procedure. Ms Sutherland said she has no way of getting to Melbourne to have it done. The Tribunal considers that this evidence demonstrates that Ms Sutherland requires the assistance of another person to enable her to attend certain types of medical appointments or procedures in order to properly care for her health.
Ms Sutherland has limited mobility in terms of the use of her legs resulting the Permanent Impairments. At the hearing, Ms Sutherland gave evidence about needing to use either a four-wheeled walker with a seat, or for shorter distances, a walking stick, to mobilise. The Tribunal is satisfied that Ms Sutherland’s limitations when mobilising makes it a constant challenge to her to attend to tasks of self-care.
At the hearing, Ms Sutherland gave evidence that she occasionally found it difficult to “get to the toilet”. She said she is able to transfer in and out of the shower.
Ms Sutherland said she will always wear shoes without laces. When asked if she is able to put on socks, Ms Sutherland said “most times, I think I could get a pair of socks on” but she would not know because she has not worn socks for years. Ms Sutherland confirmed at the hearing she is able to groom herself and that she has a dressing table in her bedroom.
The Tribunal found Ms Sutherland to be a forthright and credible witness and accepted the evidence she gave at the hearing relating to her various medical conditions, lived experience and the current level of her functional capacity.
The Tribunal notes that Ms Sutherland is able to independently execute some tasks forming part of the activity of self-care, such as heating up a frozen meal for herself, feeding herself, brushing her teeth and hair, drinking, taking her medication, transferring in and out of the bath (or shower) and when using the toilet, and driving herself to local medical and dentist appointments.
However, the Tribunal is satisfied that she is either unable to, or has major challenges with, undertaking other tasks forming part of the activity of self-care, due to the substantial limitations on the use of her lower body to perform some tasks of self-care, and arising from her rational fear of the unfortunate risk arising from her repeated experience of her legs collapsing, due to the Permanent Impairments. The Tribunal finds that Ms Sutherland is only able to mobilise very short distances (as indicated by her placing 12 chairs on her verandah so they are no more than two metres away from her), by using a walking stick and that she mostly requires a four-wheeled walker for support when walking. She is required to take frequent rest breaks due to the physical impairment attributable to her condition of COAD. These limitations make it difficult for Ms Sutherland to attend to tasks forming part of the activity of self-care.
The Tribunal finds that Ms Sutherland is unable to bathe and shower properly on a regular basis due to the risk that she may fall and consequently, needs a person to be present in the house when she does so. This is not adequately addressed by the fact that she wears a personal alarm and can call someone if she has a fall. The Tribunal accepts Ms Sutherland’s evidence that she lives in a location where it may take some significant period of time, and possibly one hour, for a person to respond to her call in these circumstances. This evidence by Ms Sutherland given by her at the hearing about this was unchallenged. The Tribunal accepts Ms Sutherland’s evidence that this has resulted in her bathing (or showering) infrequently and needing to use other ways, which the Tribunal considers to be inadequate, of cleaning herself until such time as another person visits her home to allow her to feel safe to be able to take a bath (or a shower).
Considering the evidence overall, and without the need to consider any of the deeming provisions under Rule 5.8 of the Access Rules, the Tribunal is satisfied that the Claimed Physical & Neurological Impairments has resulted in Ms Sutherland having a substantially reduced functional capacity in relation to undertaking the activity of self-care and for this reason, she meets s 24(1)(c) of the NDIS Act.
Section 24(1)(d) – Economic and social participation
The Tribunal will now consider whether Ms Sutherland’s Permanent Impairments have affected her capacity for social or economic participation. The NDIA, in its SFIC, states that it accepts that Ms Sutherland’s “neurological and physical impairments attributable to spinal stenosis and stage 4 degenerative disc disease, physical impairment attributable to chronic obstructive airways disease and physical impairments attributable to hypothyroidism affect her capacity for social and economic participation”. This position is consistent with the evidence before the Tribunal. Ms Sutherland has been unable to work in her occupation as a palliative nurse as a result of the impacts of her Permanent Impairments. She also gave credible evidence at the Tribunal as to why it is difficult for her to socialise in groups, such as the Lion’s Club, on account of her substantial mobility and continence issues.
The Tribunal finds that Ms Sutherland’s Permanent Impairments have affected her capacity for social and economic participation. Accordingly, the Tribunal concludes that Ms Sutherland meets the criterion under s 24(1)(d) of the NDIS Act.
Section 24(1)(e) – Likely to require support under the NDIS for Ms Sutherland’s lifetime
Section 24(1)(e) of the NDIS Act requires the Tribunal to be satisfied that Ms Sutherland is likely to require support under the NDIS for her lifetime. The Access Rules do not expand upon how the Tribunal is to interpret this phrase in s 24(1)(e), except to note that Rule 5.1 provides: “In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.”
The NDIA contends that the Tribunal cannot be satisfied that Ms Sutherland meets this criterion in circumstances where her impairments do not result in substantially reduced functional capacity. The NDIA relies on a decision of another member of this Tribunal in Evans and National Disability Insurance Agency [2019] AATA 754, [38]-[42]. The Tribunal is not bound by other decisions of the AAT. The Tribunal considers the correct approach is to consider and apply each of the criterion under s 24(1) of the NDIS Act based on the wording of each criterion and not to conflate one criterion with another unless prompted to do so by the wording of the criterion, or any applicable rules in the Access Rules.
Section 24(1)(e) of the NDIS Act requires the Tribunal to decide whether Ms Sutherland is likely to require support under the NDIS for her lifetime. The Access Guidelines issued by the NDIA provide the following guidance (underlining emphasis added):
Will you likely need support under the NDIS for your whole life?
You must be likely to need support under the NDIS for your whole life.
NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.
Even if your needs go up and down over time, or happen episodically , we may still consider it’s likely you’ll need lifetime support under the NDIS.
We consider your overall situation to answer this question.
When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
• your life circumstances
• the nature of your long-term support needs
•whether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.
In the NDIA’s SFIC it also contended as follows (footnotes omitted):
107.The evidence before the Tribunal suggests that the Applicant is receiving support from avenues other than the NDIS. For example:
(a) she receives approximately five hours per week of support with home care, shopping and in-home respite. Emily McCarthy (physiotherapist) stated this is inadequate to meet her goals but did not elaborate why;
(b) The State-wide Equipment Program supplied the Applicant with a Merits Yoga folding scooter, a Merits Eclipse 11 scooter, a smart lifter and a shower still with arms;
(c) The Applicant was assessed by the Shepparton Hume Aged Care Assessment Service on 17 March 2022 and was found to be eligible for a level 2 home care package of medium priority and short-term restorative care;
(d) The Applicant completed an 8-week program with Villa Maria Catholic Homes and received spectacles, continence aids, a mobile personal alarm for use in the community, a long-handled sponge, swivel cushion and 'handy bar' and a respiratory device for her to improve her lung function. The program also funded some minor home modifications.
108. The Respondent contends that the criterion in s 24(1)(e) is not met because the Applicant already receives supports to mitigate the impact of her impairments on her functional capacity, which the Respondent contends does not amount to a substantial reduction in functional capacity.
Again, the Tribunal considers that caution should be taken not to conflate the separate mandatory criterion under s 24(1) of the NDIS Act. Instead, the Tribunal considers that it must undertake a distinct consideration as to whether (as the words of s 24(1)(e) state), Ms Sutherland is likely to require support under the NDIS for her lifetime. In that regard, the evidence before the Tribunal shows a medical history of Ms Sutherland having several severe physical and neurological impairments, arising from ongoing underlying medical conditions, which were described by her medical and allied health treating practitioners as “degenerative”. Ms Sutherland gave evidence, which the Tribunal accepts, that her capacity to do things is getting worse. There was no evidence suggesting that Ms Sutherland’s underlying medical conditions are likely to improve or there is a chance they may resolve. To the contrary, according to the radiological evidence before the Tribunal as set out in paragraph [21] above (and see also Dr Schon’s opinions as set out in paragraph [10] above), she has major degeneration in her spine with severe neurological impacts causing her to collapse and at times, become wholly incontinent. This is extreme. As mentioned in paragraph [9] above, Dr Schon characterises Ms Sutherland’s degeneration as a “lifelong impairment”. Further, as referred to in paragraph [11] above, Ms McCarthy, physiotherapist, describes Ms Sutherland’s impairment from her “spinal injury – severe stenosis” as being degenerative and likely to be lifelong with the symptoms worsening over time.

In relation to the NDIA’s contention as set out in paragraph [117] above and the section of the Access Guidelines underlined in paragraph [116] above, the Tribunal notes that the NDIA appears to have imported into this criterion a further requirement that the supports required by Ms Sutherland are not more appropriately sourced, funded or provided under some other service system. The Tribunal considers that the wording of s 24(1)(e) of the NDIS Act does not support the interpretation contended for by the NDIA. The Tribunal is not bound to apply this section (as underlined in paragraph [116]) of the Access Guidelines, as it considers it to be inconsistent the s 24(1)(e) of the NDIS Act. The Tribunal does not consider that it would be a proper interpretation of s 24(1)(e) to undertake an assessment of whether the supports required by Ms Sutherland could be provided by other service systems in order to decide whether this criterion is met. Rather, the wording of s 24(1)(e) simply requires the Tribunal to satisfy itself as to whether Ms Sutherland will require support under the NDIS for her lifetime, as per the wording of this provision. The Tribunal interprets this to mean that the Tribunal must focus on whether Ms Sutherland will need those supports under the NDIS for her lifetime and that this does not depend upon whether she can acquire the supports themselves elsewhere.
For the reasons set out in paragraph [118] above, the Tribunal considers that the evidence before it supports a finding, which the Tribunal makes, that Ms Sutherland will require support under the NDIS for her lifetime.
Accordingly, the Tribunal concludes that Ms Sutherland meets the criterion under s 24(1)(e) of the NDIS Act.

CONCLUSION

For the reasons set out above, the Tribunal is satisfied that Ms Sutherland meets the “disability requirements” under s 24 of the NDIS Act. It is not necessary for the Tribunal to proceed to a consideration of whether she meets the “early intervention requirements” under s 25 of the NDIS Act.
The Tribunal sets aside the Decision Under Review and in substitution, decides that Ms Sutherland meets the access criteria under s 21 of the NDIS Act, specifically, ss 22, 23 and 24 of the NDIS Act, and is to be granted access to the NDIS.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

........................................................................
Associate
Dated: 23 February 2024

Dates of hearing:
20 September 2023 & 17 November 2023

Advocate for the Applicant: Self-represented, with assistance from
Ms Heidi Lachs, Regional Disability Advocacy Service (RDAS)

Solicitors for the Respondent:

Ms Jessica Fenech, Associate
HWL Ebsworth Lawyers

[2024] AATA 411

23 February 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Appeal

Dates of hearing:	20 September 2023 & 17 November 2023
Advocate for the Applicant:	Self-represented, with assistance from Ms Heidi Lachs, Regional Disability Advocacy Service (RDAS)
Solicitors for the Respondent:	Ms Jessica Fenech, Associate HWL Ebsworth Lawyers