Swan and National Disability Insurance Agency
[2024] AATA 2381
•11 July 2024
Swan and National Disability Insurance Agency [2024] AATA 2381 (11 July 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/4558
Re:James William Swan
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member N Purcell
Date:11 July 2024
Place:Sydney
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.............[SGD]..............
Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – Arnold-Chiari Malformation –Syringomyelia – Osteoarthritis – hand weakness –Rule 5.8 – deeming provision – assistive technology and equipment – usually requires assistance – section 24(1)(c) – whether substantially reduced functional capacity – decision affirmed.
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
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and National Disability Insurance Agency [2015] AATA 974
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Beezley v Repatriation Commission (2015) FCAFC 165
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Beaumont and National Disability Insurance Agency [2024] AATA 891
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
Newell and National Disability Insurance Agency [2023] AATA 4140
Galea and National Disability Insurance Agency [2022] AATA 2263Puster and National Disability Insurance Agency [2023] AATA 1760
SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
REASONS FOR DECISION
Member N Purcell
11 July 2024
INTRODUCTION
The issue before the Tribunal is whether the Applicant meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
The Applicant is a 63-year-old male who lives with Arnold-Chiari Malformation with Syringomyelia. It is a condition whereby a person’s brain tissue extends into the spinal canal due to a skull that is misshapen or smaller than is typical. The skull presses on the brain and forces it downward. Syringomyelia is a type of cyst in the spinal cord and commonly occurs in people with Arnold-Chiari Malformation. The Applicant also lives with Osteoarthritis.
The Applicant had surgery in 1989 insert a subarachnoid shunt, used to drain a build-up of fluid in the spinal cord because of syringomyelia. He also had major surgery in approximately 1999 called a foramen magnum decompression. This involved removing a piece of the Applicant’s skull where it meets his spinal cord, creating more space for his cerebellum to be lifted.
As a result of these conditions, the Applicant experiences physical and sensory impairments, including chronic muscular-skeletal pain (back and shoulder pain), muscle weakness in his hands, a loss of sensation particularly in his arms and hands, a loss of dexterity in fingers and hands, bad headaches or migraines and decreased stability on his feet.
The Applicant lives alone in a ground floor one-bedroom Housing NSW unit in Elermore Vale. He has two daughters, one of whom lives approximately 30-minute drive away and who he sees regularly. His other daughter lives interstate. The Applicant has supportive relationships with his immediate family, including his parents who reside on the north coast of NSW. He has a good network of friends and neighbours.
The Applicant worked for many years as a prison officer with the NSW Department of Corrective Services but was unable to continue in that role following his surgery in 1999. He then worked in several part-time or casual positions including as a truck driver, security guard and console operator at a service station but was unable, due to his impairments, to keep working. He has been in receipt of the Disability Support Pension since approximately 2000.
On 11 March 2023, a delegate on behalf of the National Disability Insurance Agency decided that although the Applicant satisfied the age and residency access criteria, he did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act.
On 28 April 2023, the Applicant sought internal review of the original decision pursuant to section 100 of the NDIS Act. On 1 June 2023, the Respondent affirmed the original decision. The Applicant then sought review of the internal review decision by this Tribunal pursuant to section 103 of the NDIS Act on 28 June 2023.
The Tribunal held a hearing by video on 18 and 19 June 2024. The Applicant was unrepresented in the proceedings. The Agency was represented by Ms Hannah Hofmann of counsel.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (‘JHB’) which was accepted into evidence. This included a set of documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’), various medical documents filed by the Applicant, an email dated 26 January 2023[1] and a statement of lived experience filed with the Tribunal on 15 August 2023 (‘first statement of lived experience’). The Respondent filed a report dated 20 November 2023 by occupational therapist, Mr Gary Stretton and supplementary report dated 05 February 2024. A second statement of lived experience, prepared with the assistance of a legal aid lawyer, dated 22 March 2024 (‘second statement of lived experience’) was also admitted into evidence at the commencement of the hearing.[2]
[1] T10 of JHB, p 64-65.
[2] The second statement of lived experience was marked ‘E1’ at the commencement of the hearing after mistakenly being left out of the JHB. The Tribunal had read the statement prior to the hearing.
The Tribunal has read the Respondent’s statement of facts, issues and contentions prepared on 6 June 2024 and take it into account. The Tribunal was also assisted by the opening and closing submissions of both parties, made orally at the hearing.
The Applicant and Mr Stretton were the only witnesses to give oral evidence at the hearing. Approximately 6 weeks prior to the hearing, the Tribunal had informed the Applicant of his right to call his daughter, general practitioner, or anyone else he believed could give relevant evidence about an issue in dispute. The Applicant advised the Tribunal about one week prior to the hearing that he had elected not to call any other witnesses.
The Applicant indicated that if he was granted access to the scheme, he would be seeking cleaning support, some assistive technology in the kitchen, some support with meal preparation, possibly some therapeutic interventions from a chiropractor or physiotherapist and assistance to cut his toe and fingernails. He described the weakness in his hands presenting the greatest difficulty for him.
The Applicant gave evidence from a friend’s home in Mackay where he travels most years to escape the colder winter of the Hunter region. He told the Tribunal he had been in Mackay for about one month and would generally spend between 2 or 3 months up there, alternating his time between two friends’ homes.
LEGISLATIVE FRAMEWORK
The access criteria
To become a participant of 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).
There is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(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.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether he meets the early intervention requirements set out in section 25 of the Act which relevantly states:
(1). A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
Access Rules
In respect of subsection 24(1)(c) of the Act, concerning substantially reduced functional capacity, the Access Rules state:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Part 6 of the Access Rules describe the early intervention requirements under s 25 of the NDIS Act:
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
…
6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity may improve.
6.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
6.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Deciding whether the provision of early intervention supports is likely to benefit the person
6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Where evidence is required
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The NDIS Operational Guidelines are also relevant to 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.[3] The relevant Operational Guideline at time of decision is Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guideline’).[4]
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[4] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024)
The Tribunal also notes that in Mulligan[5], Mortimer J as she then was, held that the legislation pertaining to the access criteria 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”.[6] The Full Court of the Federal Court of Australia in Foster[7]also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[8]
[5] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[6] Mulligan at [55].
[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[8] Foster at [44].
ISSUES
For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[9]
[9] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Disability - Subsection 24(1)(a)
The Respondent accepts that subsection 24(1)(a) is met and that the Applicant lives with physical and/or sensory impairments, that is the loss of, or damage to physical and sensory functions which have occurred as a result of Arnold-Chiari Malformation, Syringomyelia and Osteoarthritis.
The Applicant raised in his second statement of lived experience that he lives with scoliosis, which impacts his reach when toileting and requires him to use his non-dominant left hand which is the weaker of the two. There was no medical evidence confirming such a diagnosis before the Tribunal however the Applicant said he had been aware of it for many years and believed it was revealed by an MRI in approximately 2010. Mr Stretton also confirmed that the Applicant had a reduction in his “spinal range of motion”.[10] To my mind, it is unnecessary for the Tribunal to make a finding whether the Applicant lives with scoliosis. As will be discussed below, the Tribunal accepts the Applicant experiences some difficulty with toileting due to his limited ability to reach and wipe. In the Tribunal’s view, it is not necessary to assign this reduction in functional capacity to a particular diagnosis or condition.
[10] R1 of JHB, p215.
The Tribunal is satisfied on the evidence that the Applicant has a disability that is attributable to physical and sensory impairments, namely chronic muscular-skeletal pain (back and shoulder pain), muscle weakness in hands, a loss of sensation (particularly in arms and hands), a loss of dexterity in fingers and hands, bad headaches or migraines and a decreased stability on feet for the purpose of subsection 24(1)(a).
Permanence – Subsection 24(1)(b)
In a letter dated 8 December 2022, consultant neurologist, Dr Grant Walker notes that the Applicant developed symptoms and signs of Syringomyelia when he was in his late twenties.
Essentially, he was numb from C2 down and had weak and wasted hands with pyramidal signs in his legs. His syrinx extends from C2 to T10 and has never changed in size, despite a syringe-arachnoid shunt (performed in Canberra right at the beginning) and then a foramen magnum decompression (performed here at Westmead in about 2000).
Over the years there hasn’t been much change physically either, allowing for the fact that he’s getting a bit older and increase in his weight. He says he still walks about 3 kilometres a day, although he’s noticed in recent times increasing back pain and pain into his posterior thighs when he’s walking uphill. He also has left sided thoracolumbar pain at rest.
…
[The Applicant’s] examination has always been about the same. He has weak and wasted hands, areflexia in the upper limbs, reduced pain and temperature sensation from C2 down, and hyper-reflexia in his legs, though his toes have always been downgoing.[11]
[11] T6 of JHB, p 43-44.
A report from radiologist, Dr Phillip Janke, dated 6 January 2023 noted a cuff tear to the Applicant’s shoulders and severe glenohumeral osteoarthrosis, resulting in painful and restricted movements.[12]
[12] T9 of JHB, p 62-63.
A letter from chiropractor, Mr Rick Nadalin dated 8 August 2023 noted:
[The Applicant] suffers from chronic back pain due to osteoarthritis in his spine. We can keep him moving and comfortable with regular treatments. We have determined that one treatment every six weeks will manage [the Applicant’s] condition. Treatments are necessary to improve flexibility and mobility which will facilitate further reduction in his pain in his spine. We use massage, mobilisation and gentle manipulative and stretching techniques.[13]
[13] A1 of JHB, p 175.
The Applicant confirmed in his oral evidence that his migraines and headaches arise due the Arnold Chiari Malformation and that he has experienced migraines regularly throughout his life; generally about once per month. He is prescribed Endone to help manage his migraines and uses about 20 tablets over a 4–6 week period.
The Respondent concedes that the Applicant’s impairments are permanent, and the Tribunal is satisfied this is an appropriate concession for the Respondent to make. The Tribunal finds subsection 24(1)(b) is met.
Social and Economic Participation – Subsection 24(1)(d)
The Respondent also accepts that subsection 24(1)(d) of the Act is met. The Applicant has been unable to work for over 20 years and he generally needs to be at home in the afternoon when his pain intensifies, thus affecting his participation in social activities.[14] The Tribunal is satisfied the Applicant meets subsection 24(1)(d).
[14] E1 at [90].
Lifetime NDIS assistance – Subsection 24(1)(e)
The Respondent contended that subsection 24(1)(e) of the Act only arises for consideration if the Tribunal finds that subsection 24(1)(c) is met. This is because where a person’s impairment does not result in a substantially reduced functional capacity, the Tribunal could not be satisfied that the person is likely to require supports under the NDIS for their lifetime.
The Respondent confirmed that if the Applicant met subsection 24(1)(c), it would concede that subsection 24(1)(e) was met. For this reason, I now turn to the final criteria of section 24 of the Act.
Substantially Reduced Functional Capacity – Subsection 24(1)(c)
The remaining issue for the Tribunal to determine under section 24 is whether the Applicant’s impairments result in substantially reduced functional capacity in at least one of the six functional domains of communication, learning, self-care, self-management, social interaction, and mobility.
Broadly speaking, the Respondent accepts that the Applicant has reduced functional capacity in the domains of mobility and self-care. However, the Respondent contends that the Applicant’s reduced functional capacity is not substantial. The Applicant submits that he has substantially reduced functional capacity in the domains of mobility and self-care. He accepts that he has functional capacity in the other 4 domains.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[15] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[16]
[15] Mulligan at [55].
[16] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].
The following evidence was presented during the proceedings in relation to the Applicant’s functional capacity.
EVIDENCE
Applicant’s evidence
The Tribunal found the Applicant to be an honest and credible witness. He answered questions put to him by the Tribunal and Ms Hofmann in an open and candid manner. He generally made appropriate concessions or provided clarification in instances where there appeared to be an inconsistency between his written and oral evidence. For this reason, I prefer his oral evidence.
Mobility
In the home
In his first statement of lived experience, the Applicant described using grab rails in the toilet and shower, and a seat attached to the wall in his shower. He stated he experiences dizziness and neck and shoulder pain when transferring in and out of bed and will sit on the side of his bed until his balance and stability returns. He also experiences dizziness when getting in and out of a chair. He said migraines affect his balance, coordination, and stability.[17] The Applicant further stated, “On a bad day, when my pain, migraines and instability are not manageable, I am not able to transfer out of bed. Due to limited support, I often have spent multiple days at a time in my bed”.[18]
[17] A2 of JHB, p 176
[18] A2 of JHB, p 177
For reasons which are discussed below, the Tribunal is not satisfied that this accurately reflects the Applicant’s experience when he has migraines. The Tribunal is satisfied that he can transfer out of bed to go to the toilet, get a drink and microwave a meal if he is hungry.
In his second statement of lived experience, the Applicant indicated the grab rail helps him get up and down off the toilet. He said, “I can shower, but only using a handrail and seat in the shower”.[19] He described being careful whenever he gets up from a seat or from lying down, ensuring that he is sitting straight and has both feet flat on the ground before trying to get up.[20]
[19] E1 at [111].
[20] E1 at [106-108].
In his oral evidence, the Applicant told the Tribunal he stands about sixty per cent of the time and sits about forty per cent of the time when showering. If he is not feeling stable or has increased pain, he will sit down on the shower chair. He uses the heat from the hot water as a form of pain therapy for his back which can result in longer showers. He explained that he takes shorter showers when staying with people who don’t have shower chairs, including one of the people he is currently staying with in Mackay. He also stays with friends and family members who do not have a shower chair or grab rail when driving to and from Mackay.
Accordingly, the Tribunal finds that the Applicant can shower without using a shower seat though it accepts that the shower seat is beneficial.
The Applicant confirmed that he can mobilise independently in his home. He explained that he had tripped on things in his home a couple of times which resulted in a fall. Most recently he tripped on a blanket and fell a few weeks before his trip to Mackay, but stated it was an accident and not because of pain. The Applicant did not provide any details of falls resulting from pain.
In the community
In his first statement of lived experience, the Applicant confirmed that he can drive independently. He said his disability limits his capacity to catch public transport safely because he is at higher risk of injury/falls. He uses a hiking stick when walking long distances, such as over 1km (emphasis added).[21]
[21] A2 of JHB, p 176-177.
In his second statement of lived experience, the Applicant said his legs aren’t too bad, but he is not steady or balanced and must look at his feet while he walks. He can walk for a maximum of 1 kilometre (emphasis added).[22] He uses a shopping trolley to stay steady on his feet and carry his items when shopping.[23]
[22] E1 at [49].
[23] E1 at [46] and [86].
The Tribunal notes Dr Walker’s letter of 8 December 2022, at paragraph 28 above, which states the Applicant walks approximately 3km per day. Mr Stretton’s report of November 2023 said he can walk approximately 2km and he uses his stick for stability and confidence.[24] The Applicant also gave evidence that he has recently lost weight from eating healthy food and keeping active.
[24] R1 of JHB, p199.
The Applicant told the Tribunal he usually gets out of the house at least once a day and can walk to his local shopping centre which is 200 metres away. He doesn’t always use his hiking stick when he walks to the local shops and that it depends on how he is feeling. He uses the hiking stick when he goes on longer walk with friends, including out to the local lighthouse. He said they take their time walking and there are places for him to sit down along the way. He estimated that such walks take between 1 to 1.5 hours.
The Tribunal is satisfied, taking all the evidence into account, that the Applicant can walk for about 2km.
The Applicant said he hadn’t experienced any recent falls in the community and that he makes “an effort to be careful not to fall”.[25] He is also careful on stairs but noted most stairs have a handrail he can use.
[25] E1 at [94].
In his second statement, the Applicant said he can’t carry a shopping basket due to weakness in his hands and the weight of carrying items. He asks other people to help load heavier items in his trolley. He keeps a trolley at home which he uses to take the groceries from his car to his unit. “For any time, if I have to carry it for 50–60 metres, I need to use a trolley. Or if the item is heavier – say, 4-5 kilos, I’ll have to get someone to help me.”
At the hearing, the Applicant said he could carry an item weighing 5 kilograms with both hands and he carries shopping bags over his forearms. He described sometimes needing to make multiple trips from the car to his unit to carry his shopping items inside. He can also pick up a 2-litre bottle of milk by its handle.
The Applicant explained, “On a good day, I can stand over a pan long enough to muck around making a stir-fry, and I might stand at the stove longer than other times, but even that is not very long – less than 15 minutes”.[26] He told the Tribunal that he could stand in a queue for about 10 minutes.
[26] E1 at [92].
At the hearing, the Applicant confirmed he can drive for about 30 minutes duration, and he will drive that distance to visit his daughter once every 2 or 3 weeks. He also goes shopping and attends appointments in his local area, with most places between a 5 to 15-minute drive away. He can drive to his parent’s house located 3 hours away but will take regular breaks and uses a cushion to support his back while driving.
Most recently, he drove his manual car to Mackay where he stays with friends for between 2-3 months during the winter months. He told the Tribunal it took him about one and a half weeks to drive up, stopping to stay with family members and friends along the way.
Self-care
Showering and grooming
The Applicant reported he can undress and shower independently but uses a handrail and shower seat to assist with these tasks, as discussed above.
He said he struggles to hold a bar of soap and can’t cup the body wash in his hands properly. He has tried to use a loafer but doesn’t like it and uses a longarm scrubbing brush. He uses an electric toothbrush with a thick handle.
The Applicant no longer shaves due to difficulty using a manual razor and has grown a beard which he can trim. He can reach his toenails but doesn’t have the hand strength to cut his toenails or his fingernails. He told the Tribunal his daughter assists him with this task or occasionally he will get a cheap pedicure for around $40 when he can afford it.
Toileting
The Applicant said he can transfer to the toilet independently but used a handrail for stability. Owing to scoliosis, he explained that he can’t reach behind with his right hand, so he uses his non-dominant left hand, which is weaker. He describes difficulty gripping and feeling the toilet paper when using it.[27]
At the hearing, the Applicant explained he will often have a shower afterwards to make sure he is properly clean. He indicated that currently he would not want assistance with his type of personal care.
The Applicant was asked whether he discussed these issues with Mr Stretton. He could not recall but thought he had mentioned it.
Dressing
[27] E1 at [115-117].
The Applicant will sometimes sit or lean on the end of the bed when getting dressed. For example, he will sit to get his pants or shorts on and pull them part way up before standing up. He told the Tribunal he mainly wears loose fitting t-shirts, shorts, tracksuit pants with elasticised waistband and windcheaters because they are easier to put on and pull off.
He struggles with belts, waist cords and buttons. He does the buttons up on a shirt before putting it on and struggles the most with buttons on trousers. He must do everything visually, in front of a mirror, because he can’t feel the buttonholes. He can tie shoelaces by watching what he does but told the Tribunal he usually wears thongs or slip-on shoes without laces.[28] He struggles to put on socks but has found it a bit easier to put on ankle socks since losing some weight.
[28] E1 at [141-145].
When attending an event such as a wedding or his parents’ 90th birthday party, he wears more formal pants. On these irregular occasions he has asked his brother or a friend to help him do up his pants. He explained to the Tribunal that he avoids asking his daughter to help him get dressed as he is not comfortable with that. When asked whether getting dressed is something he would like a support worker to assist with he replied, “I don’t think I’d let anyone do that…. I think I’d try and fumble through…but maybe in the future yes”.
Preparing meals / eating and drinking
In his first statement, the Applicant described difficulty pouring water from a kettle and said he does not have the strength to cut through firm ingredients, such as meat and some raw vegetables. He finds it difficult to hold pots and pans.[29]
[29] A2 of JHB, p 181.
In his second statement, he said he only cooks food that are soft as “I can’t use knives to cut hard food”.[30] Later in the same statement he said “[w]hen I am eating, I always use a steak knife or another sharp kind of knife if I have to cut food”.[31] He described burning himself when getting meals out of the oven, using a tea towel to protect his hands. He said his knuckle is often burnt due to the way he grips a hot coffee mug with his finger through the handle.[32]
[30] E1 at [62].
[31] E1 at [123].
[32] E1 at [118-122].
When asked by the Tribunal whether he had considered something like a ‘thermo’ or insulated coffee cup to avoid that issue, the Applicant confirmed he has cups which have a big loop handle which means his fingers don’t touch the cup. He added, “I can’t seem to remember not to use certain cups”.
The Tribunal also asked why he was using a tea towel to get things out of the oven. The Applicant said he struggles to use oven mitts because he needs to see his hands. He described the burns occurring when preparing larger meals such as roast lamb, roast pork, or lasagne which he cooks about once per month. He indicated he didn’t have trouble getting lighter meals out of the oven, such as a meat pie.
The Applicant described badly burning his arm 2 or 3 years ago draining boiled vegetables, which resulted in attendance at the Royal North Shore hospital burns unit.[33] The Applicant explained he could see the steam hitting his arm, but he could not feel it.
[33] T10 of JHB, p64.
Mr Stretton noted the Applicant has “sustained many smaller burns”[34] and told the Tribunal “extra, extra care” needs to be taken because of the hand weakness. The Tribunal notes the stated care the Applicant takes when walking to ensure he doesn’t fall. It was unclear why the Applicant seems to take less care in terms of selecting his coffee cup or cooking larger meals which appear to increase the risk of small burns to his hands. There was no evidence before the Tribunal of serious burns since the Applicant’s hospital attendance 2 or 3 years ago.
[34] R1 of JHB, p201.
At the hearing, the Applicant said he has cereal and fruit most days for breakfast but will make bacon and eggs on the weekend. He often makes a sandwich for lunch. He also makes a range of stews and curries for dinner. The Applicant explained that, as a pensioner, he must be very careful with money and his food choices are constrained by price. He purchases microwave meals when they are on special and estimated about sixty per cent of his main meals are frozen meals.
While he finds it hard to pour water from the kettle, he only partially fills the kettle each time and makes around 5 coffees per day. He usually buys 2 litre bottles of milk and can use the handle to pick it up. He finds it hard to open the milk and often relies on his daughter to open the bottle. However, he also explained that he manages to open some bottles using a multi-grip and has an electric can opener.
Washing up
The Applicant described the challenges associated with washing the dishes in his second statement. These include being unable to sense the water temperature, resulting in burns to his hands and the dishwashing liquid making crockery and utensils slippery which are difficult to grip.[35]
[35] E1 at [127-129].
At the hearing, the Applicant confirmed he uses a regular sponge combined with a course green pad for cleaning pots and pans and will also use metal scouring balls. He does the dishes every couple of days but will usually clean up straight away if he has cooked a main meal. He finds it difficult to clean the pans because they are heavy and it’s difficult to hold with his left hand while using his right hand to scrub them clean.
The Applicant indicated that he burns his hands “all the time” from the dish water. When asked whether he has used any strategies to mitigate the risk, such as leaving the water for 10 minutes or measuring the hot water, the Applicant described putting cold water in first but also wanting sufficiently hot water to clean the dishes. The Applicant did not report any difficulty managing temperature regulation when showering.
He also described his attempts to mitigate the risk of injury washing knives, stating “I try to just bring one knife in at a time”. He said that despite this, he still drops them. He did not indicate that this had resulted in any cuts to his hands.
Cleaning
The Applicant can wipe benchtops and clean the bathroom vanity. He told the Tribunal he can wipe the toilet seat and clean the toilet bowl with a toilet brush. He said he was unable to apply sufficient pressure to mop the floor in his bathroom or to scrub his shower.
The Applicant indicated that he uses the stick vacuum cleaner for “a 5 second job”. He described his regular vacuum cleaner as having strong suction which means he doesn’t have the strength to manoeuvre it back and forth. He was unsure about how much time his daughter spends vacuuming the main surface areas of his unit but estimated about 15 to 20 minutes. The Applicant said “I can do a little bit, like I said, if I have a spill on that, but I don’t, I try not to do too much… I don’t wanna aggravate any of my aches and pains cause I’ve them all the time. So yeah, it’s probably more of a defensive things you know.”
Later in the hearing the Tribunal asked whether he could do some small bursts of vacuuming at different times using the stick vacuum in his lounge area, bedroom, and kitchen. The Applicant confirmed he would be able to do that.
Laundry
The Applicant can pull his sheets off the bed but does not have the strength in his hands to put on a fitted sheet or lift the mattress. He relies on his daughter to put fresh sheets on his bed when she visits. The Applicant indicated his sheets are changed about every 1–2 weeks.
He does a load of washing every 3 or 4 days and will often hang his clothes on an air dryer in the corner of his living room. His daughter will usually hang his sheets on the outside line. The Applicant confirmed that due to the problem with his shoulder and weakness in his left side that it is harder to hold up heavier items. However, “with a bit of effort” he can hang up larger items, as his right hands are “not too bad. I can get the pegs on”.
Gardening
The Applicant confirmed that the Department of Housing takes care of the lawns at his unit block. He has a collection of potted plants around the entrance to his unit however he hurt his shoulder moving one of the pots, so will now ask one of his grandchildren or a friend to move the heavier pots if needed.
Fine motor skills
The Applicant told the Tribunal that he uses a pen every couple of days to write shopping lists and he can sign something at Service NSW or the doctors. He said it’s “pretty much scribble only I can understand”. He uses a modified grip, holding the pen between his index and middle finger.
He confirmed he can use his mobile phone and type on a keyboard using his index fingers but does not own a tablet or computer. He will ask his daughter or friends to write things down for him if they are present. The Applicant indicated that he has used the facilities at the local library when he needs to send or print an email.
He is unable to use regular scissors but can use heavy duty kitchen scissors to open packets.[36] He confirmed he could cut most foods that he eats with a steak knife, though it takes more time and effort. He avoids ordering food like steak when he’s out for dinner because he is self-conscious about the way he holds his cutlery and is worried he might spill it. Onions, pumpkin, and prawns are foods that the Applicant really struggles to hold, chop or peel.
[36] E1 at [83].
He can manage his own medication and can push his pills out of the blister packets independently.
Assistance from others
The Applicant estimated that his daughter came over to help two or three times per week. He said she doesn’t vacuum every time and “whenever she’s got time, she’ll come over and clean the bathroom. She might mop the floors…she comes over to help me with stuff, open bottles and that”.
As mentioned above, she will also put fresh sheets on the Applicant’s bed every 1-2 weeks and hangs his sheets on the outside line. She cuts the Applicant’s toe and fingernails when required and will accompany him to the supermarket on occasion. It was clear from the Applicant’s evidence that the assistance he receives from his daughter has a social dimension, allowing them to catch up and share a coffee together.
The Tribunal inquired whether there had ever been a time when his daughter was unable to attend the Applicant’s home for an extended period, due to her own family or work commitments. The Applicant indicated there had been times when she was busy with other things, but he was able to wait for her assistance and didn’t require help from someone else. The Applicant said he doesn’t like to ask for help but that he has a close friend who cleans his car.
Pain management
In his second statement of lived experience, the Applicant said:
I have a lot more bad days than good days. Out of a fortnight, I may get 3 good nights and days, maybe 4. And then I will have 10 bad days and nights. It might be half a good night and half a bad night. How much of a night is a good or bad night depends on what medication I take as well. The variation is also because, for 3-4 days a month in addition to the body pain, I have severe headaches.[37]
[37] E1 at [68].
However, when speaking with Mr Stratton prior to the preparation of his second statement, the Applicant indicated experiencing one bad day per fortnight. When questioned at the hearing about the apparent discrepancy, the Applicant said, “I guess it comes down, it depends on when I’m asked what … that’ll be at different times, because I could have a whole heap of bad days in a row and then…have a lot of good days in a row … it changes all the time.”
The Applicant indicated he had woken up twice in the past week at around 1am and was unable to get back to sleep for a couple of hours.
The Applicant explained that while some pain is constant, medication can improve his day and make the pain bearable. He is reluctant to take too many painkillers and tries to manage the pain with stretching and mobilising. He takes Ibuprofen most days and sometimes a couple of times per day. He will take Panadeine Forte when required but does not particularly like it due to the side-effects. He uses Endone when he has migraines and the pain is particularly bad, using a packet of 20 pills about once every 4–6 weeks. His doctors have offered him sleeping tablets, but he doesn’t use them because he finds it causes him more pain to sleep in the one position all night.
When asked what sort of support the Applicant would want from the NDIS during periods when he was in bed with migraines, he thought he might like someone to come in and make him a coffee or a meal. However, he also noted that if he’s in pain he usually wants to be left alone until he feels better.
The Applicant has a GP management plan which enables him to access 5 sessions with a chiropractor who he sees about every 6 weeks. The Applicant must pay for the additional sessions and noted that he had seen a chiropractor twice in the past month due to pain.
Mr Stretton’s evidence (occupational therapist)
Mr Gary Stretton, occupational therapist (OT) conducted an independent functional capacity assessment with the Applicant at his home on 13 November 2023. Mr Stretton’s first report is dated 20 November 2023[38] and a supplementary report is dated 5 February 2024[39].
[38] R1 of JHB, p 185-227.
[39] R2 of JHB, p 228-238.
At the hearing, Mr Stretton made a minor amendment to his first report, noting that a photo demonstrated the Applicant raising his left shoulder and arm, not his right. He otherwise confirmed that the reports were correct and represented his opinions. He has 29 years’ experience as an OT in Australia and the United Kingdom and has been doing medico-legal work for 14 years. He also has clinical caseload of NDIS participants where he is the treating OT.
Mr Stretton explained that he prepares for assessments by reviewing any referral documents, usually medical information, or other reports. He was not familiar with the Applicant’s condition of Arnold-Chiari Malformation prior to the assessment and so as part of his usual practice, he conducted an internet search to understand how the condition normally manifests, the types of symptoms and whether it’s a progressive or degenerative condition. He noted that the name of the condition is not necessarily important to his assessment; his focus is on the impact of the conditions or impairments on the person’s functional capacity. As part of his assessment, Mr Stretton usually conducts an interview which takes about one hour to get the person’s perspective on how they conduct their day-to-day activities. He will also ask the person to do a task or simulate a task and uses several standardised assessments. Mr Stretton confirmed that he used this standard approach when assessing the Applicant.
The WHODAS 2.0 (World Health Organisation Disability Schedule) was administered during the Applicant’s assessment. The questions in this assessment focus on the person’s perception of their function in the preceding 30 days and largely align with the functional domains relevant to NDIS access.
The Applicant’s responses provided an overall score of 42.99%. Mr Stretton explained that this score equates to moderate difficulty, or the upper end of moderate difficulty. Higher percentages indicate a higher level of self-perceived functional impairment. Mr Stretton concluded that the Applicant’s overall self-assessed level of difficulty with daily activities using the WHODAS was consistent with his reported activity participation during other parts of the assessment.[40]
[40] R1 of JHB, p 197
The Applicant’s results for each of the domains were:[41]
Understanding and communicating 04.17% (mild difficulty)
Getting around 50.00% (severe difficulty)
Self-care 56.25% (severe difficulty)
Getting along with people 10.00% (mild difficulty)
Life activities 75.00% (extreme difficulty)
Participation in society 62.50% (severe difficulty)
TOTAL 42.99% (moderate difficulty)
[41] R1 of JHB, p197-198.
At hearing, Ms Hofmann questioned Mr Stretton about the tasks that would fall within ‘life activities’, the one domain where the Applicant returned a score of ‘extreme difficulty’. Mr Stretton explained that this domain relates to taking care of household responsibilities including cooking and cleaning. The questions also focus on how well tasks are completed and how quickly tasks can be completed. He agreed that this domain largely correlated with ‘self-care’ under section 24.[42]
[42] Mr Stretton also confirmed that the WHODAS 2.0 domain of ‘self-care’ most closely correlates with ‘personal care’ tasks.
The Australian Modified Lawton’s Activities of Daily Living Assessment (‘Lawton’s’) measures function relating to instrumental tasks, such as a person’s ability to perform their own shopping, cleaning, cooking, manage their finances, using a phone, and managing transport; skills that demonstrate a person’s independence in the wider context. Lawton’s was administered to the Applicant by Mr Stretton, who scored him 28/30.
A low score using the Lawton’s indicates a low level of functioning, whereas a high score indicates a high level of functioning.[43] Mr Stretton explained to the Tribunal that the Applicant scored quite highly because he can manage all of those tasks, largely independently. “There were just a couple of points taken off for some of that heavier cleaning stuff that he has trouble with” and “the food preparation difficulties”. Mr Stretton confirmed that the Lawton’s assessment captures most of the self-management tasks along with some self-care tasks, such as cleaning.
[43] R1 of JHB, p198
Mr Stretton was asked to explain the discrepancy between the two scores at the hearing, noting that the Lawton’s indicated a much higher level of functioning than the WHODAS 2.0. Mr Stretton said Lawton’s is limited to instrumental activities and doesn’t include all self-care type activities. It also seems to the Tribunal that because the questions in the WHODAS 2.0 incorporate a focus on the quality and speed with which tasks are completed, this could influence the results, particularly when a person is likely to self-asses their current capacity against their own previous capacity or perceived capacity amongst people in the wider community. In any event, the standardised assessments are only part of Mr Stretton’s assessment and must be interpreted along with his observations of the Applicant undertaking or simulating tasks in his home.
Mr Stretton told the Tribunal in his oral evidence that the Applicant “is independently managing most things in his daily life. It’s just that he does so with what I would consider moderate difficulty with most of those things because of his impaired hand function” and “the reason it’s probably a bit higher than you might expect is because a person who has, you know, muscle wasting in their hands obviously has difficulties with quite a few things”.
Mr Stretton described a typical day for the Applicant as follows:
On a typical day [the Applicant] prepares meals for himself, watches television, talks to neighbours and family and attends to other household tasks within is (sic) capability. He may leave the house to attend an appointment, complete his grocery shopping or go on a walk with friends. [The Applicant] reported that on the day of the assessment he was having a ‘good day’. Approximately once per fortnight he will have a ’bad day’, which results in him remaining in bed for the day due to pain and headaches.[44]
[44] R1 of JHB, p 214.
Mobility
Mr Stretton reported that the Applicant mobilises within his home and outside independently without a walking aid. “He uses a hiking stick, which he uses when goes on a ‘proper walk’, meaning when he goes on a scheduled walks (sic) with friends… He is able to walk approximately 2km, but his balance is affected when he tires and he uses the stick for stability and confidence”.[45]
[45] R1 of JHB, p199.
The Applicant advised Mr Stretton that he completes all transfers independently, including chair, shower, toilet, bed, and car. Mr Stretton observed safe and independent transfers off the toilet, bed, and couch.[46]
[46] R1 of JHB, p199.
The Applicant explained that he spreads shopping items across many bags to reduce their weight for ease of lifting and carrying. He also drives independently.
Mr Stretton concluded that the Applicant does not require assistance with mobility.
Self-care and self-management
Mr Stretton reported that the Applicant prepares his own meals and chooses to cook things that he is physically able to manage. He was observed to simulate using a knife and fork using an altered grasp due to hand weakness and finger contractures. He had difficulty recognising the temperature of water and grasping objects such as glasses and knives to wash them in a safe way. In his oral evidence, Mr Stretton said:
It was too hot for me to put my hands in and just looking at the way he was able to grasp and manipulate the cutlery and crockery, I just that that it presented safety concerns when you’re dealing with, looking at knives and plates that can break and so forth. So, so yes, he washes his own dishes now, nobody comes in to do it for him. I think that doing so presents a safety risk, both from a temperature recognition perspective and also just being able to hold on to slippery objects without dropping them and having them smash.
Mr Stretton suggested that the Department of Housing could adjust his water temperature, or the Applicant could install a bench top dishwasher. He agreed with counsel that a water thermometer, such as those used to check the water in a baby’s bath, could also be used.
Mr Stretton observed the Applicant hold a stick vacuum and use the appropriate motion, however hand weakness and contracture prevented firm grasp. Mr Stretton considered the stick vacuum “suitable for occasional use only”. In his supplementary report, Mr Stretton clarified that the stick vacuum is suitable for everyday vacuuming but does not allow thorough cleaning in corners or other hard to reach places that require different attachments.[47] In his oral evidence, he thought the Applicant could run the stick vacuum across the floor for brief periods as that wouldn’t require “a firm grasp for a long period of time”. The Applicant reported to Mr Stretton that he was not able to apply the pressure required to mop floors. Mr Stretton concluded the Applicant was unable to clean or scrub the shower to an adequate standard.[48]
[47] R2 of JHB, p232.
[48] R1 of JHB, p202.
Mr Stretton reported the Applicant could not open a sealed jar or use a standard can opener, however he uses an electric can opener independently. He was observed to pour a kettle with his right hand independently.[49]
[49] R1 of JHB, p202.
Mr Stretton told the Tribunal the Applicant could prepare his own meals but acknowledged that it is more difficult for him due to his hand weakness, and he has sustained burns due to an inability to recognise temperature. He suggested the Applicant needs to take extra care when performing cooking tasks because of his hand weakness and loss of sensation. With respect to the Applicant using a tea towel to take things out of the oven, Mr Stretton stated:
That's the problem with this type of condition. It's a bit of a trade-off between them cause you want something thin enough that you can sort of have some sensation that then the trade-off is that you've got a higher risk of burns.
He thought there would be something available on the market “that would be a decent middle ground between the two”. He also suggested a perching stool could assist to alleviate the Applicant’s back pain when standing for any extended period in the kitchen.
Mr Stretton noted the Applicant can wash his own clothes but has difficulty using a clothesline due to limited movement in his left shoulder and poor pinch strength to use pegs. He can strip the sheets from his bed; however, his daughter helps to change the linen.[50]
[50] R1 of JHB, p202
The Applicant was observed to manipulate buttons, put on socks and shoes, put on a belt, and take it off. He relied on a mirror to guide him to successfully put a button through a buttonhole and fasten a belt.[51]
[51] R1 of JHB, p203.
It was Mr Stretton’s understanding that the Applicant manages his own personal care tasks, showering daily and using a long-handled brush to help wash himself. He usually wears casual clothing with elasticised waist and brushes his teeth independently.
Mr Stretton’s report did not mention that the Applicant experiences any difficulties with toileting. He could also not recall whether the Applicant had raised the issue with him. Counsel put to Mr Stretton a summary of the Applicant’s oral evidence about difficulty wiping with his left hand and showering afterwards to ensure he is clean. Mr Stretton opined “that would certainly make sense from what I assessed of his hand function”. Mr Stretton suggested that a reasonably inexpensive bidet could be attached to the Applicant’s regular toilet to assist with toileting.
Mr Stretton reported that “[a]pproximately once per fortnight [the Applicant] will have a ‘bad day’, which results in him remaining in bed for the day due to pain and headaches”.[52]
[52] R1 of JHB, p214
Mr Stretton suggested that the Applicant may be eligible for some assistive technology through NSW Health programs which assist those who don’t quality for other schemes and who don’t have the financial means. The Enable NSW assistive technology policy directive states that:
NSW Health provides appropriately prescribed, timely, cost effective and clinically necessary assistive technology to:
- Support health needs
- Reduce or prevent risk of injury or illness that would result in admission or readmission to hospital.
- Facilitate timely and safe discharge from hospital.[53]
[53] R4 of JHB, p242.
It further states a person is ineligible for assistive technology through NSW Health if the assistive technology sought is required to support a disability.[54]
[54] R4 of JHB, p246.
The Out of Hospital Care Program – Safe and Supported at Home (SASH) provides a 6-week package of support which can include personal care, domestic assistance, and meals for those who are in the process of accessing long-term support, including those who are appealing a NDIS Access decision and have limited or no informal support.[55]
[55] R5 of JHB, p252-253.
When the Tribunal raised concerns about whether the Applicant would in fact be eligible for the Enable NSW program, due to his apparent exclusion on the ground of disability, Mr Stretton said “I appreciate your concern about eligibility there. That just isn’t my experience. In my experience people get access to this”. He confirmed that the types of assistive technology discussed in his report and in the hearing, such as modified cutlery, a perching stool and a one touch jar opener could be accessed through this scheme.
The Tribunal queried with Mr Stretton whether he’s had any clients access the program who were not in hospital immediately prior or who were receiving some sort of health intervention. He replied:
Uh, no, not without receiving some sort of health intervention. Certainly not directly from hospital. I’ve seen them access it from, from home, being in the community. But but yeah, to be fair, usually after some kind of intervention from the health district.
Apart from aged care services when he turns 65, Mr Stretton could not identify any other programs which the Applicant would be eligible for.
When asked whether the assistive technology could prevent the ongoing deterioration of the Applicant’s functional capacity, Mr Stretton opined:
I mean, it's not none of none of it will prevent deterioration of his condition. Provision of that stuff will certainly keep them safer and make him sort of into more independent for longer. But ultimately if the sort of current trajectory continues then and if he loses more hand function, then his needs will change and increase.
Mr Stretton agreed with the Applicant that he was having a good day on the day of the assessment and that the weather was warm. He noted that in his experience, people with similar issues to the Applicant function worse on colder days. The Applicant submitted that his functional capacity is reduced by 25% in cold weather, however no further evidence was presented to support this assertion.
CONSIDERATION OF CLAIMS AND EVIDENCE
As noted above, in determining whether the Applicant meets subsection 24(1)(c), the Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules. The Access Guidelines form part of the NDIA’s policy framework, and to the extent they are consistent with the Act, should be applied unless there is good reason not to do so.[56]
[56] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635]
In Mulligan,[57] Mortimer J explained that rule 5.8 of the Access Rules is a deeming provision; that is, if a person’s circumstances are caught by its terms, they must be taken to have a substantially reduced functional capacity for the purposes of subsection 24(1)(c). However, her Honour made clear that considering a person’s circumstances through the prism of rule 5.8 is only part of the statutory task. If the deeming provision is not met, the decision maker must proceed to consider whether, regardless of rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[58]
[57] Mulligan at [66-67].
[58] Mulligan at [77].
Accordingly, the Tribunal’s first task is to determine if the Applicant’s circumstances are captured by the deeming provision. If the Tribunal finds the deeming provision does not apply, it must then consider the evidence before the Tribunal regarding his functional capacity in each domain and determine whether he meets the statutory threshold. The Access Guidelines naturally inform this task.
The application of rule 5.8: the deeming provisions
Rule 5.8 prescribes circumstances or criteria to be applied in assessing whether the Applicant’s impairments result in a substantially reduced functional capacity to undertake the 6 domains of activity.[59]
[59] Foster at [56].
The Full Court of the Federal Court of Australia in Foster 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” (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. Katzmann, Perry and Derrington JJ observed that:
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.
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.[60]
[60] Foster at [64-65].
For present purposes, the Tribunal is required to consider the bundle of tasks and actions which form the concept of each activity. Within each bundle, I must consider the tasks that the Applicant can do and those that he can’t do because of his impairments. As every applicant’s circumstances are different, the assessment must be practical and applied to the relevant circumstances of the individual applicant concerned.
Rule 5.8(a)
There are two key questions that must be considered when assessing whether the Applicant has substantially reduced functional capacity as per rule 5.8(a). The first question is to consider what it means to say someone is unable to participate effectively or completely in mobility or self-care. The second is to determine what is meant by assistive technology or equipment (other than commonly used items such as glasses) and whether it could be said the Applicant uses either.
In Foster, their Honours held that “[i]n the overall legislative scheme, the adverb ‘completely’ appears to be redundant, and in any event, unachievable”.[61] For this reason, the word ‘effectively’, should be the focus and is taken to mean “serving to effect the purpose; producing the intended or expected result”.[62] In this sense, perfection is not the standard.
[61] Foster at [83].
[62] Macquarie Dictionary (8th ed, Macquarie, 2020) at p 493 cited in Foster at [82].
Further, undertaking a task differently or more slowly to others will not necessarily mean a person cannot participate effectively or completely in an activity.[63]
[63] Foster at [67].
A person will not necessarily be deemed to have substantially reduced functional capacity simply because one or more tasks is unable to be completed without assistive technology. The significance of the task to the overall concept of the activity is also relevant. However, it remains for the decision-maker to assess the degree to which the person can participate in the activity.[64]
[64] Foster at [88].
The terms assistive technology or equipment is defined in the NDIS Act or Rules.
“Assistive technology” is defined in the Assistive Technology Operational Guideline, issued by the NDIA on 20 June 2022, in the following way:[65]
[65] As cited in Foster at [41]
The World Health Organisation has a universal definition of assistive technology.
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
• mean you need less help from others
• help you do things more safely or easily
• help you to keep doing the things you need to do
• allow you to do tasks independently
• are personalised for you.
(My emphasis)
As discussed in the Tribunal’s recent case of Beaumont[66], this Tribunal is of the view that there is no inherent quality to assistive technology or equipment beyond the function to help people do things they normally can’t, or which are particularly difficult. It does not necessarily need to be prescribed or purchased, for example, at significant cost.
[66] [2024] AATA 891 (30 April 2024) at [113 - 118]
Further, ‘commonly used items’, also not defined in the Act or Rules, should be interpreted using a plain reading of the text. Glasses are commonly used items because they are routinely used by a wide range and large number of people to improve vision. Coincidentally, glasses almost always require a prescription and often involve significant cost compared with some of the items discussed in this case.
Rule 5.8(b)
Under this rule, the Tribunal must consider the specific task or tasks that the Applicant usually requires assistance with to determine whether, overall, he experiences a substantial reduction in functional capacity in the activity.
Rule 5.8(c)
It is clear from the evidence that rule 5.8(c) is not relevant to the Applicant due to his current level of functional capacity.
Substantially reduced functional capacity
With respect to s 24(1)(c), the word “substantially” carries a high threshold. Its meaning should be considered in the context that the NDIS was not intended to provide reasonable and necessary supports to every person with a disability.
In assessing the Applicant's functional capacity, the Tribunal will take a 'wholistic' approach at what the Applicant can, and cannot do, having regard to the fluctuating nature of his impairments and the overall impact of the pain in assessing the Applicant's functional capacity.[67]
[67] See for example, Newell and National Disability Insurance Agency [2023] AATA 4140 at [123]; Galea and National Disability Insurance Agency [2022] AATA 2263 at [76].
As the Tribunal said in Madelaine,[68] having a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being”.
[68] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121].
Self-management
The Access Guidelines describe self-management as “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”.[69]
[69] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p9.
There was some overlap in how Mr Stretton’s report considered self-management and self-care. However, as there was no evidence of the Applicant having a cognitive impairment, some of the cleaning tasks dealt with by Mr Stretton under self-management were considered by the Tribunal under the domain of self-care. Mr Stretton concluded “he is able to make all decisions independently”.[70]
[70] R1 of JHB, p 211.
The Tribunal finds that the Applicant has functional capacity with respect to self-management.
Communication
The Agency considers “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”.[71]
[71] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Applicant does not report any difficulties with oral communication and can communicate without assistance in person and by telephone.[72] He does experience some difficulty holding a pen and described his writing as scribble. However, undertaking a task differently from or more slowly than others will not necessarily mean that a person cannot participate effectively or completely in an activity.[73]
[72] R1 of JHB, p200.
[73] Foster at [67].
The Applicant was able to express himself clearly in his first statement of lived experience, prepared without the assistance of a lawyer and during the hearing.
Accordingly, the Tribunal finds the Applicant has functional capacity to communicate.
Learning
This is “how you learn, understand and remember new things, and practise and use new skills”.[74]
[74] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
Mr Stretton concluded that the Applicant did not display any obvious impairment to his cognition or ability to learn new information and does not require assistance for learning.[75] The Applicant was also observed to participate effectively in the Tribunal process despite it being a new experience for him.
[75] R1 of JHB, p 200 – 201 and 206.
The Tribunal finds that the Applicant does not have a substantial reduction in functional capacity in the activity of learning.
Social Interaction
The Access Guideline refers to socialising as “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”. This domain requires the Tribunal to focus primarily on the skills of social interaction, not the opportunity to exercise the skills.
The Applicant engaged appropriately at all times with the Tribunal and Mr Stretton. He has good relationships with various family members, friends, and neighbours.[76] The Tribunal accepts that there are times when the Applicant withdraws from social and community engagement when experiencing pain. However, the key question is whether the Applicant can make and keep friends, interact appropriately in community settings and cope with feelings and emotions.[77] The Tribunal is satisfied he can.
[76] R1 of JHB, p200.
[77] See Madeleine and National Disability Insurance Agency [2020] AATA 4025 at [87].
Mobility
The Access guidelines describe mobility or moving around as “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”.[78]
[78] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Tribunal heard the Applicant uses a telescopic hiking stick when going on longer walks outside of the home to help him ‘stay steady’.[79] He will avoid uneven surfaces when walking and looks down at his feet, taking care not to fall.[80] The Applicant described going on walks for between 1 to 1.5 hours with friends, noting that he would sit down to rest along the way. He can walk approximately 200 meters to his local shopping centre and back several times per week and doesn’t always use his hiking stick for this walk. The Tribunal also heard that the Applicant uses a trolley for balance and to steady himself when doing his grocery shopping.
[79] E1 at [99].
[80] E1 at [94-99].
The Tribunal accepts that the Applicant uses his hiking stick as a form of assistive technology to increase his mobility when out in the community. It also accepts that he modifies the use of a regular shopping trolley for additional balance and stability when doing his supermarket shopping. In the case of the hiking stick, it increases his capacity and confidence to walk longer distances than might otherwise be the case, but it cannot be said the Applicant is reliant on the hiking stick to go to his local shops, attend appointments or visit friends. Accordingly, the Tribunal finds that the Applicant can sufficiently mobilise in the community without the hiking stick or trolley and is not captured by Rule 5.8(a) in the domain of mobility.
There was no evidence of the Applicant requiring physical assistance in the domain of mobility and therefore Rule 5.8(b) does not apply.
The Tribunal finds that the Applicant can mobilise independently within the home and in the community, attending appointments, social activities, and the supermarket, as needed, on a daily or weekly basis. While there is a reduction in the distance and duration that the Applicant can mobilise in the community and noting that his experience of pain usually gets worse in the afternoons, the Tribunal does not accept that this reduction reaches the requisite threshold of ‘substantial’. Therefore, the Applicant does not satisfy subsection 24(1)(c) in the domain of mobility.
Self-care
Self-care is described as “personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bath, eat or go to the toilet”.[81]
[81] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024, p8.
The Tribunal heard that the Applicant currently uses a range of assistive technology with respect to self-care tasks including a grab rail beside his toilet, a grab rail and shower chair in his shower, an electric can opener and a multi grip tool for opening bottles.
A range of assistive technology or equipment was also suggested by Mr Stretton in his supplementary report and discussed during the hearing. These items include one-touch jar opener, modified cutlery, perching stool, tempering valve to limit water temperature, bench-top dishwasher, water thermometer, robotic vacuum cleaner, bidet attachment for toilet and specialised oven mitts (providing increased heat protection and dexterity).
A question arose at the hearing whether rule 5.8(a) requires an applicant to be using assistive technology or equipment (however defined) or simply demonstrate the need for assistive technology or equipment because the applicant 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 it.
In the Tribunal’s view, any requirement that a person possess or use assistive technology or equipment at the time of their application might have the undesirable outcome of advantaging applicants with greater financial resources over those from lower socio-economic backgrounds. It might also give an unfair advantage to those with greater knowledge of the legislative framework, who could bolster their access request through the purchase of equipment, supports or services at the time of their application.
It is accepted by the Tribunal that the assistive technology currently used by the Applicant is beneficial to him, as would the provision of the various items of assistive technology discussed during the hearing. However, the key question is whether the Applicant is unable to participate effectively in the bundle of tasks that make up self-care without certain forms of assistive technology, regardless of whether they are currently being used or not.
The Applicant indicated the grab rail helps him get up and down off the toilet, however he also acknowledged that he stays in homes without grab rails beside the toilet. While the grab rails no doubt assist the Applicant to get on and off the toilet, the Tribunal finds he can currently manage without them.
Similarly, the shower chair and grab rail were installed for a previous tenant prior to the Applicant moving into his unit. He gave evidence that he did not use grab rails or a shower chair before moving into the property and has progressively used them over the 6 years since he moved in. The Applicant gave evidence that he uses the shower chair about forty per cent of the time when showering and uses the hot water as a form of pain relief for his back, resulting in longer showers. He confirmed that he can manage without a shower chair in his current holiday accommodation in Mackay by taking shorter showers.
The Tribunal accepts that due to muscle weakness and a lack of dexterity in his hands, the Applicant would be unable to use a regular can opener and relies on an electric can opener for this task. The Tribunal also accepts that the Applicant finds it very difficult to open milk and water bottles, often relying on his daughter to open them. He gave evidence that he can use a multi-grip to open some bottles independently and avoids milk bottles which have a plastic liner under the cap.
In relation to the assistive technology that the Applicant currently uses, the Tribunal finds that the Applicant can go to the toilet and shower without grab rails or a shower chair. The Tribunal is also satisfied that while the Applicant relies on the electric can opener and multi-grip to open cans and some bottles, these tasks cannot of themselves be considered central to the activity of self-care. There are other food options available to the Applicant should he be without an electric can opener or multi-grip tool.
In relation to other assistive technology that the Applicant could use, the Tribunal finds that the one-touch jar opener would clearly alleviate the difficulties the Applicant has opening jars, but for the reason mentioned above, this task is not of sufficient significance to engage the deeming provision. The modified cutlery and perching stool would also make cooking and eating more comfortable for the Applicant; however, the evidence suggests that the Applicant is able to manage with regular cutlery using a modified grip and uses steak knives to assist with cutting his meals. He can stand for between 10–15 minutes and currently cooks a range of home-cooked meals including curries, stews, roast, and lasagne without a perching stool.
The tempering valve and bench-top dishwasher were proposed as possible solutions to the Applicant’s difficulties sensing hot water. The Tribunal and counsel raised various simple strategies that could be used to mitigate the risk of burning oneself in hot dishwater such as leaving the water for several minutes, measuring the hot water or using a thermometer. While the tempering valve and dishwasher would assist the Applicant, there are other simple and cheaper solutions that could be immediately employed to alleviate the risk. For this reason, it cannot be said the Applicant requires this sort of assistive technology to wash the dishes safely.
In relation to the risk of burns to his hands, Mr Stretton wrote, “In my opinion [the Applicant] should receive support from an occupational therapist to trail and prescribe appropriate assistive technology to allow him to maintain his independence whilst ensuring his safety in the kitchen” and to use “the oven and grill using AT that allows appropriate dexterity whilst maintaining safety”.[82] The Tribunal is not convinced that assistance from an OT is required to try oven mitts which could improve the protection of the Applicant’s hands when getting larger meals in and out of the oven. The Applicant’s evidence was that he does not burn his hands when getting smaller meals out of the oven. The Tribunal is satisfied that there are strategies that the Applicant could employ to reduce the risk of burns such as cooking smaller meals, trying different oven mitts at a homeware store and being very careful. Similarly, the Tribunal is satisfied the Applicant can reduce the risk of burns to his hands by being mindful of the coffee cup he uses.
[82] R1 of JHB, p212.
The Applicant gave evidence that he could do short bursts of vacuuming using the stick vacuum and that he currently showers after going to the toilet to ensure cleanliness. While a robotic vacuum and bidet attachment would no doubt assist the Applicant with these tasks, the Tribunal is satisfied that he can currently manage without these forms of assistive technology.
For the reasons outlined above, the Tribunal finds the Applicant’s circumstances are not captured by rule 5.8(a) in relation to self-care.
As outlined above at paragraphs 87-89, the Applicant gave evidence that his daughter provides assistance in relation to several self-care tasks including vacuuming, mopping, cleaning the shower, opening bottles or jars, putting fresh sheets on his bed, hanging out sheets and cutting his toe and fingernails. The Applicant also said that she will sometimes accompany him when he goes shopping.
As mentioned above, the Tribunal invited the Applicant to call his daughter as a witness if he so wished, however he declined to do so.
Counsel for the Respondent submitted that the Applicant was somewhat vague in describing the type of assistance provided by his daughter. For example, he said she usually attends his unit 2 or 3 times per week but was unable to describe how long she takes to do certain cleaning tasks, such as the vacuuming or how regularly she completes each task. The Tribunal accepts that the Applicant’s daughter provides assistance on a fairly regular basis, however I tend to agree with the Respondent’s submission that the Applicant did not provide great detail about her cleaning routine or how much time certain tasks take to complete. The Tribunal was left with the impression that the Applicant’s daughter clearly helps him with tasks that she knows are difficult for him such as the vacuuming and hanging out the sheets however, the Tribunal is satisfied that the Applicant can use the stick vacuum and hang out sheets himself, albeit with some difficulty and requiring additional time.
The Tribunal accepts that he requires assistance with opening some jars and bottles and needs his toe and fingernails cut. It is further accepted that the Applicant is unable to put a fitted sheet onto his bed, properly scrub his shower or mop the floor with sufficient pressure. The Tribunal finds that these are the only cleaning tasks that the Applicant can’t do.
Counsel asked the Applicant whether he had considered a cleaner or investigated the hourly cost of one. The Applicant said he had not and thought that he might require 2 or 3 hours of cleaning assistance per week. The Tribunal is satisfied, having seen photos of the Applicant’s unit, that that is a significant over-estimate of the time required to complete the tasks he cannot do.
The Tribunal is not satisfied that the Applicant usually requires assistance with the bundle of tasks that form the activity of self-care. For the small number of self-care tasks that he cannot do, the Tribunal is not persuaded that they affect his self-care to the extent that he could be deemed to have a substantially reduced functional capacity under rule 5.8(b).
As rule 5.8(c) does not apply, the Tribunal finds that the Applicant is not captured by the deeming provision in relation to self-care.
In assessing whether the Applicant could otherwise be said to have substantially reduced functional capacity, my consideration of the evidence above confirms that while there are several self-care tasks that are difficult for the Applicant to do, such as vacuuming, cutting food, and hanging out larger laundry items, he can do these tasks by taking additional time, using modified movements, and withstanding some pain. In the case of dressing and toileting, while these tasks also involve some difficulty, the Tribunal is satisfied he manages and does not want personal care assistance at this time.
The Tribunal accepts that the Applicant’s capacity may decrease on bad days and in cold weather, however it finds overall that there are very few tasks that he can’t do within the domain of self-care. Mr Stretton concluded that the Applicant experiences moderate reduced functional capacity and that he is “independently managing most things in his daily life”. At the times when the Applicant is in bed with a migraine, the Tribunal is satisfied that he can go to toilet, get a drink, and put a meal in the microwave should he feel like eating.
Of the tasks that cannot be done, the Tribunal finds that opening bottles, jars or cans are not central to the Applicant’s health, safety, or wellbeing in day-to-day life.
Further, while he requires some assistance with changing his bed linen, scrubbing his shower, mopping the floor, and cutting his nails, he can complete most self-care tasks independently, albeit at a slower pace or involving modified movements. In the Tribunal’s view, the current limitations do not give rise to a substantially reduced capacity for self-care.
Accordingly, the Tribunal is not satisfied the Applicant meets section 24(1)(c) in relation to self-care.
SECTION 25 – EARLY INTERVENTION
Having concluded that the Applicant does not satisfy section 24, the Tribunal is now required to consider his access to the scheme under section 25.
The Respondent accepts that the Applicant’s physical and/or sensory impairments are permanent for the purpose of section 25(1)(a).
However, the Respondent contends that there is no evidentiary basis for the Tribunal to find that the requirements of sections 25(1)(b) or (c) are met.[83] Particularly due to the longstanding nature of the Applicant’s impairments, the Respondent further submits that the required supports are not ‘early intervention’ in nature[84] and that any early intervention support required for the Applicant, namely assistive technology and cleaning support are not most appropriately funded or provided by the NDIS. The Respondent notes the Applicant will be able to access support through the aged care system when he turns 65.
[83] T5 of JHB, p 30; T7 of JHB, p45.
[84] T4 of JHB, p28; T6 of JHB, p43; T7 of JHB, p45; T12 of JHB, p73.
As to the early intervention criteria under section 25 of the Act, the Guideline states:
How will early intervention help you?
We need to decide that getting early intervention supports means you’ll likely need fewer disability supports in the future (s 25(1)(b)).
We need to know that early intervention supports will help you with at least one of the following (s 25(1)(c)):
• addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
• preventing your functional capacity from getting worse
• improving your functional capacity
• supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at (r 6.9):
• how your impairment might change over time
• how long you’ve had your impairment
• if there’s been a significant change to your impairment
• if your needs are likely to change soon, such as if you’re finishing school.
Is your early intervention most appropriately funded by the NDIS?
The support you need must be most appropriately funded or provided by us (r 6.1).
You won’t be eligible if we decide the support you need is more appropriately funded or provided:
• by other general systems of service delivery or support services, such as a workers compensation scheme
• under a universal service obligation that other government services must provide to all Australians, such as schools and public hospitals
• as a reasonable adjustment under discrimination law, such as making places or venues accessible for you.
For example, you usually won’t be eligible if you only need the following supports. These are more appropriately provided by other government and community services:
• medical services, and treatments for health conditions, including ongoing or chronic health conditions
• clinical early intervention mental health supports, such as services to help children, teenagers and young people grow and develop
• clinical acute and crisis mental health supports – such as care in a hospital or similar setting.[85]
[85] Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
The Applicant was asked whether he thought the provision of any supports for a period of one or two years could reduce his need for supports in the long term. He replied that he didn’t think so and indicated that his impairments have progressively got worse from 1989 and “I really feel it’s accelerated now”.
Mr Stretton was also asked about whether assistive technology could prevent the ongoing deterioration of the Applicant’s ability to do certain tasks. He said “none of it will prevent deterioration of his condition. Provision of that stuff will certainly keep him safer and make him sort of… more independent for longer. But ultimately if the sort of current trajectory continues then and if he loses more hand function, then his needs will change and increase.”
The Tribunal notes the approach adopted in the decision of Puster:[86]
The Tribunal does not accept the suggestion put by the respondent’s representative that this necessarily requires an assessment in close temporal proximity to a diagnosis, but it does require an assessment at the early stage of an impairment’s trajectory. In this sense, the Tribunal accepts the contention put by the applicant’s representative that in the case of a degenerative condition it may be possible for an applicant to meet the early intervention requirements without a close temporal connection to a diagnosis but where the impairments that flow from the underlying condition can still be said to be at an early stage of their trajectory.
[86] Puster and National Disability Insurance Agency [2023] AATA 1760 at [67].
This Tribunal agrees with that approach. Due to the trajectory of the Applicant’s impairments and the associated impact on his functional capacity over a long period of time, the Tribunal is not satisfied the provision of early intervention supports would reduce the Applicant’s need for future supports pursuant to section 25(1)(b).
In reaching this conclusion, the Tribunal does not wish to suggest the Applicant does not experience difficulties arising from his impairments. It is evident that he does. Nor does this decision seek to diminish the impact of those impairments on his quality of life. The Tribunal accepts that the Applicant’s circumstances are difficult and that many day-to-day tasks require time, effort, and the endurance of fluctuating pain. Further, the Tribunal accepts that the Applicant could benefit to some degree from the adoption of the recommendations made by Mr Stretton in his reports. However, the Tribunal is not satisfied that the Applicant’s functional capacity is presently reduced to such a degree that renders him eligible to receive funding for those supports through the NDIS.
While the Tribunal is no longer required to consider section 25(3) regarding whether early intervention support is more appropriately funded or provided by through other general systems of service delivery as part of a universal service obligation, the Tribunal is minded to make a brief comment. As discussed at paragraphs above, the Tribunal was not convinced the Applicant would be eligible to receive any assistive technology under the NSW Health programs. It is an unfortunate situation that the provision of some relatively minor assistance appears to be completely unavailable to the Applicant through other government and community programs. The Tribunal accepts that some assistive technology and cleaning support would improve the Applicant’s quality of life, even in circumstances where his reduction in functional capacity does not rise to the level of substantial. For a person who was forced to retire through no fault of his own and who has lived on the Disability Support Pension for over 20 years, seemingly modest expenses can present very real barriers to a person in the Applicant’s shoes. Fortunately, the Applicant will qualify for aged care assistance in less than 2 years. However, the interim period will likely involve some challenges for the Applicant who will either continue to manage, albeit with difficulty and support from his daughter, or who will be required to pay for that assistance.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for the decision herein of Member N Purcell.
.........................[SGD]...........................
Associate
Dated: 11 July 2024
Date(s) of hearing: 18 and 19 June 2024 (by video) Solicitors for the Respondent: Ms Isabelle Heath, Maddocks
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