TODD and National Disability Insurance Agency - [2022] AATA 4445

TODD and National Disability Insurance Agency [2022] AATA 4445 (21 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/5653
Re:Adrian TODD
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Mr Rob Reitano, Member
Date:21 December 2022
Place:Sydney

I set aside the delegate’s decision that Adrian Todd does not meet the access criteria to become a participant in the National Disability Insurance Scheme and substitute a decision that Adrian Todd meets the access criteria to become a participant in the National Disability Insurance Scheme.
...........................[SGD].............................................
Mr Rob Reitano, Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – whether the applicant has a ‘substantially reduced functional capacity’ – whether the applicant is likely to require the support of the NDIS for his lifetime - whether the applicant can participate ‘effectively or completely’ in the activity, or perform tasks or actions required to participate ‘effectively and completely’ in the activity – whether the applicant usually requires assistance – meaning of ‘effectively and completely’ - whether the applicant’s functional capacity in the activity of mobility is substantially reduced – whether the applicant’s functional capacity in the activity of self-care is substantially reduced – where the applicant has reduced functional capacity for mobility – satisfied that it is substantially reduced – satisfied that the functional capacity for self-care is reduced – applicant will require the support of the NDIS for their lifetime – applicant meets access requirements – decision under review set aside and substituted.
Legislation
National Disability Insurance Scheme Act 2013 (Cth) s 18, 20, 21, 22, 23, 24, 25, 27,100
Cases
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
Secondary Materials
National Disability Insurance Scheme (Becoming a participant) Rules 2013
Access to the NDIS Operational Guideline
REASONS FOR DECISION
Mr Rob Reitano, Member
21 December 2022

Mr Adrian Todd seeks access to the National Disability Insurance Scheme (NDIS) established under the National Disability Insurance Scheme Act 2013 (Cth) (Act) based on his disabilities that are attributable to his physical impairments which are, or are likely to be, permanent.
On 11 September 2020 a delegate of the National Disability Insurance Agency (Agency) decided under s.100(6) of the Act to confirm an earlier decision that Mr Todd did not meet the requirements for access to the NDIS. On 16 September 2020, Mr Todd made an application to the Tribunal for a review of that decision seeking to have that decision set aside and in substitution a decision be made that he meets the access criteria in the Act.
The issues that need to be considered are:
(a)whether Mr Todd has satisfied the Tribunal that he meets one or other of the requirements in s.24(1)(c) of the Act, namely that he has an impairment or impairments that result in substantially reduced functional capacity in either or both of the activities of mobility or of self-care; and
(b)whether Mr Todd has satisfied the Tribunal that he meets the requirement in s.24(1)(e) of the Act that he is likely to require support under the NDIS for his lifetime.
I have decided to set aside the delegate’s decision that Mr Todd does not meet the access criteria to become a participant in the NDIS and substitute a decision that Mr Todd meets the access criteria to become a participant in the NDIS. What follows are my reasons for that decision.
THE REGULATORY CONTEXT
The starting point for the regulatory scheme is found in s.18 of the Act which permits a person to make ‘a request to become a participant in the NDIS’ and s. 20 of the Act which requires the Chief Executive Officer of the Agency (CEO) to decide whether a person ‘meets the access criteria’.
The question as to whether a person ‘meets the access criteria’ is determined by s.21 of the Act which so far as is relevant involves consideration of s.21(1) which provides:
(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).
It is not necessary to set out s.22 and s.23 of the Act which deal with age and residence requirements, as the Agency conceded, and I am satisfied, that those requirements are met.
It is also not necessary to set out s.25 of the Act, as Mr Todd did not rely upon it as a basis for his meeting the access criteria.
Section 24 of the Act provides:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii)   learning;
(iv)   mobility;
(v)    self‑care;
(vi)   self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
It is not necessary to deal with any of the requirements of s.24(a), (b) and (d) as the Agency conceded, and I am satisfied, that those requirements are met. So far as Mr Todd’s disabilities are concerned, they arise from the permanent impairments to his back, neck, jaw, hips, ankle and essential tremor. His particular conditions are chronic pain (secondary to multiple injuries), back pain with radiculopathy, disc protrusion, neuralgia pain radiating from both legs, neck pain with radiculopathy, torticollis secondary to cervical dystonia, disc degeneration with right forearm narrowing irritating a nerve root in his back, recurrent jaw dislocation, hip and ankle osteoarthritis, right ankle joint injury and instability, shoulder and hip injuries, left ankle injury and instability, fractured hyoid cartilage and an essential tremor in his hands.
The phrase ‘substantially reduced functional capacity’ in s.24(1)(c) is not defined in the Act. The word ‘substantially’ should be taken to have its ordinary English meaning, as there is nothing in the context either specifically or generally that would enliven the need to look for some other or different meaning. The word ‘substantially’ means ‘significantly’ or ‘greatly’ reduced.
The phrase ‘functional capacity’ is also not defined the Act but naturally enough the phrase directs attention to a person’s ‘capacity’, that is the ‘ability’ or ‘capability’, to ‘function’, which in context must mean ‘doing things’. ‘Functional capacity’ is directed to identifying a person’s capacity to do things and their capacity not to do things. A person’s capacity to do things engages considerations of, as relevant, a person’s physical, cognitive, psychological and intellectual capacity.
It follows that the inquiry posed by the words ‘substantially reduced functional capacity’ directs attention to ascertaining whether the result of a person’s impairment or impairments is that they have a significantly or greatly reduced ability to do one or more of the prescribed activities listed in s.24(1)(c)(i) to (vi). I do not consider that there is any ‘threshold’ for determining whether a person has a ‘substantially reduced functional capacity’ other than that which is created by the Act which is whether the person’s ability to participate in one or some of the prescribed activities is significantly or greatly reduced. That is a matter for a decision maker’s evaluation on a case-by-case basis depending on the evidence before the decision maker. As Mortimer J observed in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [101]:
It will be apparent from what I have said above that I accept the respondent’s submission that what is involved in the performance of the task under s 24(1)(c) of the Act, read with r 5.8 of the Rules, is an evaluative exercise. The Tribunal needs carefully to weigh the evidence before it, and to do so on a particularised and individual basis in relation to each of the six activities set out in s 24(1)(c), subject to an applicant not putting some of those activities in issue.
Section 27 of the Act provides:
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)one or more impairments are, or are likely to be, permanent for the purpose of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or
(b)one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or
(c)one or more impairments affect a person's capacity for social and economic participation for the purposes of paragraph 24(1)(d); or
(d)the provision of early intervention supports is likely to benefit a person by reducing the person's future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or
(e)the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person's functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or
(f)the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person's carer for the purposes of subparagraph 25(1)(c)(iv).
For present purposes the relevance of ss.27(b) is that the National Disability Insurance Scheme rules may prescribe ‘circumstances in which or criteria to be applied in assessing whether…one or more impairments result in substantially reduced functional capacity of a person to undertake one or more of the activities for the purposes of paragraph 24(1)(c)’.
Section 209(1)(a) provides the Minister with the power to, amongst other things, make rules prescribing matters required or permitted by the Act to be prescribed by the National Disability Insurance Scheme rules. The power is specific and separate from the Minister’s power in s.209(1)(b) to make rules that are necessary and convenient to carry out or give effect to the Act. Section 209(3)(a) requires the Minister, in making any such rules, to have regard to ‘the objects and principles of the Act’ and by s.209(3)(b) to have regard to ‘the need to ensure the financial sustainability’ of the NDIS. It is not necessary to set out here the objects and principles other than to observe that all of them are directed to people with a disability and are not at all confined to people with a disability who have, by reason of their impairments, ‘substantially reduced functional capacity’.
In accordance with the permission in s.27 and the power in s.209 the Minister made the National Disability Insurance Scheme (Becoming a participant) Rules 2016 (Rules) which commenced on 1 July 2016.
The Rules prescribe ‘the circumstances in which or criteria to be applied in assessing whether. . .impairments result in substantially reduced functional capacity of a person to undertake one or more of the activities for the purposes of paragraph 24(1)(c)’. Rule 5.8 contains that prescription and provides:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
There are several issues that arise out of r.5.8(a) which concern first, what the words ‘effectively or completely’ mean and second, what the phrase ‘effectively or completely’ qualifies. An issue arises in this matter about what r.5.8(a) means.
The first issue concerning the meaning of the words is readily disposed of: the words are ordinary English words and in context there is no need to depart from their ordinary meaning. The ordinary English meaning of ‘effectively’ is ‘virtually’ or ‘substantially’ or ‘actually’ but it is also sometimes used to mean ‘so as to produce an intended result’. It can be seen that those meanings accord with the context in which the word is used in r.5.8(a) and neither is inconsistent with the ordinary meaning. The word ‘completely’ is less difficult, meaning ‘fully’, ‘wholly’ or ‘entirely’.
The second issue is more problematic, involving a consideration of what the intended object of the qualification is for the words ‘effectively or completely ‘.
The Agency submitted that the words ‘effectively or completely’ direct attention to a person’s ability to participate because of the word ‘unable’ in the rule. The Agency submitted that ‘the test is whether the applicant is unable completely to do the activity or has such reduced ability to do the activity that it is effectively the same as being unable to completely do the activity’. The focus of the inquiry, on the Agency’s submission, was the inability of the person and whether the person was completely unable, or effectively unable, to participate in the activity or to perform tasks or actions required to undertake or participate in the activity.
Mr Todd submitted that the words ‘effectively or completely’ directed attention to participation in the activity, or the tasks and actions required to participate in the activity. Mr Todd’s case was that:
…the test is whether the person’s participation in the task or activity is incomplete or ineffective without assistance technology, equipment (other than commonly used items) or home modifications. If the Applicant’s participation is not effective or complete, then the Applicant will have met this part of the test.
The starting point is the ordinary English grammatical meaning of the words in r.5.8(a). The phrase ‘effectively or completely’ does not appear before the adjective ‘unable’ where, in ordinary usage, one would expect to find it if it was qualifying that word. Further, the phrase twice appears after the verb ‘to participate’ and before the words ‘in the activity’. Again, the placement of the qualification after the verb ‘to participate’ and before the phrase ‘in the activity’ reasonably suggests it is intended to qualify participation in the activity. The ordinary grammatical positioning of the words suggest that the words ‘effectively or completely’ are intended to qualify ‘participation in the activity’ and not the person’s inability.
Next, it is instructive to have regard to the broader context in which r.5.8 is found. The rule has its genesis in the rule making power in s.27, in particular ss.27(b), and ss.230(1)(a) of the Act. Sub-section.27(b) does not at all confine the Minister to making rules that are consistent with what might be, or is thought or said to be, the ordinary meaning of ‘substantially reduced functional capacity’. The power in ss.27(b) to make rules expressly permits the Minister to ‘prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c)’. The prescription found in r.5.8 is a deeming provision that relies upon s.27(b) and s.230 for its existence and not the meaning of the words ‘substantially reduced functional capacity’.
In making any prescription the Minister is required to have regard to the objects and principles of the Act and to financial considerations concerned with the sustainability of the NDIS. The objects and principles in the Act concern people with disabilities and are not limited to people with disabilities who have ‘substantially reduced functional capacity’. The words ‘substantially reduced functional capacity’ are not found in the objects or the principles in the Act. Naturally enough, the financial considerations to which the Minister must have regard play a part in the reach of ‘the circumstances in which or criteria that is to be applied in assessing whether…’ because providing for circumstances that bring greater numbers of people with a disability within the NDIS will consequently come at a greater fiscal cost, which in turn may affect the sustainability of the NDIS. But those things are ultimately a matter for the Minister to have regard to in laying down any prescription.
In Mulligan at [77] Mortimer J said:
I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas. Whether or not this constitutes a separate error by the Tribunal need not be determined, for it is clear that even within the terms of r 5.8, the Tribunal only examined para (a) and not para (b), although they were both relevant and relied upon by Mr Mulligan. (The underlining is added for emphasis)
Mortimer J’s reference to r.5.8 as a ‘deeming provision’ which ‘has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity of the criteria in r.5.8(a), (b) or (c) are met’ is significant because it acknowledges the mandatory deeming effect of r.5.8.
There is not much remarkable about the use of a statutory device of a deeming provision that might extend the circumstances that fall within the expression ‘substantially reduced functional capacity’. Deeming provisions in various forms of legislation are often concerned with creating a fiction, by way of legislative device, that something is to be treated as being something that it is not for a particular purpose. There is no reason why the rule maker, the Minister, was confined to prescribing circumstances or laying down criteria consistent with the ordinary meaning of the words ‘substantially reduced functional capacity’. Nor is there any basis for suggesting that in making rules, the Minister was confined or obliged to make rules for the assistance of decision makers in determining whether a person’s functional capacity was reduced substantially. The rule making power says no such thing. The position might be different if the power to make rules only resided ss.230(1)(b), that is to make rules necessary or convenient to carry out or give effect to the Act, but the legislature made an express statutory provision permitting the Minister to prescribe ‘circumstances in which’, or ‘criteria to be applied in assessing whether’ s.24(1)(c) was satisfied.

The effect of s.27 is to permit the Minister to extend by delegated legislative prescription the reach of s.24(1)(c) by prescribing ‘circumstances in which or criteria to be applied in assessing whether one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c)’. The circumstances or criteria are those contained in r.5.8.
The Agency suggested that Mr Todd’s construction should be rejected because the application of the provision on the construction contended by him ‘is anything but clear cut which means no purpose is served by the deeming provision because in trying to apply it, one has to engage in the very qualitative analysis that s.24(1)(1)(c) otherwise requires’. That submission suggests that the purpose of r.5.8 is to avoid the issue of ‘qualitative judgment’. That purpose is not to be found in the rule making power or in the terms of the rule. Sub-section 27(b) does not say anything about the prescription provided for in the rules being confined to making rules that have as their purpose avoiding the ‘qualitative judgment’ required by s.24(1)(c) or anything of the like. Rather, ss.27(b) in its terms has as its purpose to mandatorily include people in the category of persons with a ‘substantially reduced functional capacity’.
The Agency also suggested that the construction advanced by Mr Todd left no room for what it described as the ‘residual operation for s.24(1)(c)’ referred to by Mortimer J in Mulligan because a failure to perform one task or action in an activity will be activated by r.5.8(a). The observation made by Mortimer J was not made by reference to anything other than the obligation of a decision maker to engage in a consideration of the relevant legislative and rule-based approach. Mortimer J was not directing her consideration to what might be left after r.5.8 was dealt with, but rather directing attention to the approach a decision maker should take to the application of r.5.8 and s.24(1)(c). In any event there is no reason to hypothesise about the potential ‘residual operation of s.24(1)(c)’ in construing the Rules as they stand separate from s.24(1)(c).
I consider that the correct application of r.5.8 requires consideration of whether Mr Todd’s participation in the activities of mobility and self-care, or to perform tasks or actions required to participate in mobility and self-care, is effective or complete without assistive technology, equipment (other than commonly used items) or home modifications. I am required to consider whether Mr Todd’s effective or complete participation in the activities of mobility and self-care or the tasks and actions necessary to participate in those activities requires that he use assistive technological equipment (common items aside) or home modifications.
Before leaving r.5.8 it is necessary to note that there was no significant argument about the meaning of r.5.8(b), more probably than not because its words are very clear. It applies to the circumstances where a 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.’ Two things should be pointed out. First, the words ‘assistance’ appears to be intended to have a wide meaning, both because of its ordinary meaning and as a result of the word ‘including’ in the brackets. Second, and more importantly for present purposes, the words ‘to perform tasks or actions required to undertake or participate in the activity’ clearly invite attention to the constituent required tasks and actions that are relevant to an activity, with the consequences that if a person requires usual assistance with any of those tasks or actions, the circumstance is satisfied and the deeming provision operates to bring the person within the s.24(1)(c) for the same reasons I have already explained that apply to r.5.8(a).
To this end the Access to the NDIS Operational Guideline (Guideline) provides assistance in determining what tasks and actions fall within the various activities to which s.24(1)(c) refers. Relevantly it provides so far as the two activities that are relevant to this matter:
Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving home, moving around in the community and performing other tasks requiring the use of limbs;
Self-care: means activities related to personal case [sic], hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health needs.
The Guideline is not exhaustive as to what tasks or actions are included in each of the relevant activities. The Guideline is policy, and as such should be read as offering guidance so far as the content of the relevant activities are concerned. It is sufficient to observe that what is involved in the activities on ‘mobility’ and ‘self-care’ should be approached on the basis of what is likely to be ordinarily understood by use of the words, rather than by rigid adherence to those activities as outlined in the Guideline.
Further, so far as r.5.8(a) refers to equipment, the Guideline makes clear what specialist disability aids and equipment are in that context:
Such items would generally be specifically designed ‘to assist in increasing the functional capacity and participation of people with a disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist o speech therapist. functional capacity.
Next, it is necessary to refer to some other parts of the Guideline. Paragraph 8.1.3 of the Guideline provides:
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
The Guideline, at paragraph 8.5, also provide some guidance as to the application of s.24(1)(e) which provides:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(l)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant's overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person’s lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, nor whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]-[115]).
THE EVIDENCE GENERALLY
The main evidence that went to the issues of substantially reduced functional capacity in the activities of mobility and self-care was from Mr Todd himself and Ms Pordage, who was an occupational therapist retained by the Agency to provide reports relevant to the issues concerning Mr Todd’s functional capacity. Both parties made extensive submissions about the credibility and reliability of both of them. It is convenient to make some general observations about their evidence before dealing specifically with the facts relevant to Mr Todd’s functional capacity to engage in the activities of mobility and self-care. I will deal with some general observations about their evidence separately.
There were three aspects of Mr Todd’s evidence that the Agency suggested affected the credit or reliability of his evidence generally.
First, there were aspects of Mr Todd’s evidence connected with his financial circumstances that were unsatisfactory. For example, he omitted from his Supplementary Statement of Lived Experience any reference to his ‘savings left over from the family crisis – family – family breakdown’ which he was apparently using to fund the shortfall between his fortnightly income of $683, his rental assistance of ‘$60 – something a week’, and his commission trail of about $150 a month on the one hand, and his weekly rent of about $550 on the other hand. The omission does not mean that his description of his ‘financial situation as limited’ was inaccurate, but it does mean that one would approach his evidence a little carefully especially so far as finances were concerned, simply because he did not expressly refer to his savings in that statement so as to present a full or complete picture. I do not consider that the omission was deliberate or designed to mislead but the failure to include everything relevant is a concern when it comes to assessing the reliability of his evidence. The matter is of limited importance given that Mr Todd’s financial situation, which was the focus of this evidence, was not something that went to the heart of the issues to be decided.
There was also a suggestion that Mr Todd was less than fulsome about his disclosure concerning his capacity to work because he had not referred to his work as a mortgage broker from about 2016, which he had ceased in August 2020. Again, I do not think that there is much to be said about Mr Todd’s failure to refer to his mortgage broker work in that period, other than it would have painted a more complete picture if he had. I do not consider that any omission was deliberate or dishonest or was intended to mislead anyone. These kinds of things simply mean some care should be taken with Mr Todd’s evidence in particular so far as it concerns matters to do with his financial arrangements which are, in any event, not relevant to the matters that need to be determined.
Second, Mr Todd’s evidence about his renting the house where he lived revealed some inconsistency: on the one hand, it was clear that he was living in private rental accommodation and not in public housing, even though it seems he may have told Ms Pordage that he was living in public or government housing. Again, the evidence about this was a little unsatisfactory but because it involves word-against-word testimony as to what was said by Mr Todd to Ms Pordage, and was very much at the periphery of the real purpose of Ms Pordage’s visit, I do not place any particular reliance upon it. The possibility that there was a mistake, in Mr Todd’s words because ‘he did not explain things correctly’, is not readily disposed of.
Third, the Agency pointed to Mr Todd’s abandoned reliance upon social interaction, or communication so far as social interaction is concerned, as an activity in which he could not participate in because of ‘substantially reduced functional capacity’. When compared to his capacity to give evidence for a ‘sustained period of time’, this claim about limitations in communicating was said to be inconsistent with his demonstrated or in fact capacity to socially interact in the context of the proceedings. Mr Todd explained aspects of the difficulties he had giving evidence and some of the difficulties that he had in other contexts. I am not prepared to put any significant reliance on this, especially given Mr Todd’s answers and the impression I gained in seeing Mr Todd give his evidence that he was in fact having some difficulty at various times.
In the end I should approach Mr Todd’s evidence with care, not because he was in any way intending to deliberately mislead or attempting to do so, or being dishonest, but as some of these things indicate he made mistakes, or a possible miscommunication, or because he did not at times paint a full or completely accurate picture about things. Further, the fact that his evidence about many things was self-serving and that aspects of Ms Pordage’s evidence were based on what he told her means I should, in any event, approach his evidence generally and his evidence about what he told Ms Pordage with some care.
Next, it is necessary to deal with Ms Pordage’s evidence in a general sense and, as with Mr Todd’s evidence, I will deal with specific aspects of her evidence later. In order to understand something of the general complaints made about Ms Pordage’s evidence it is necessary to set out some of the background to her evidence first.
As I have said Ms Pordage is a qualified occupational therapist with something in the order of 30 years of experience. Ms Pordage prepared three reports for these proceedings, the first dated 30 December 2020 and the other two both dated 28 April 2021. For the most part, reference to her report in the remainder of these reasons are to the first of those reports.
The reports have, as part of their relevant context, the Agency’s solicitors’ briefing letter to Ms Pordage of 27 November 2020. That letter is important because it informed the task that Ms Pordage was asked to undertake. After introducing themselves as the Agency’s solicitors the letter said in the second paragraph:
The purpose of this letter is to confirm your appointment to conduct a functional assessment of Mr Adrian Todd at his home at [the address is omitted] on Monday, 30 November 2020 at 11.00am. We also write to provide instructions as to how the functional assessment should be conducted and the matters that should be addressed. (The underlying is added for emphasis)
The letter then set out Mr Todd’s age and listed his impairments. The letter referred to the decision that had been made declining Mr Todd access to the NDIS because the decision maker was not satisfied on the then available evidence that he met the disability requirements in s.24 or the early intervention requirements in s.25, and that Mr Todd was seeking a review of that decision.
The letter continued and under the heading ‘Instructions’:
We request that you prepare a report based on your full functional assessment of the applicant, that provides details regarding the current impact of Mr Todd’s conditions. Please include details of any functional impact on Mr Todd’s ability to undertake activities in relation to communication, social interaction, learning, mobility, self-care and self-management.
Your report should also address the questions set out in Annexure A.
(The underlining is added for emphasis)
It is not necessary at this point to set out all of the questions in Annexure A; it is only necessary to observe that some questions referred specifically to ‘support’ or ‘supports’: for example, question 1(b) asked ‘what type, level and frequency of assistance (if any) does Mr Todd need to support him to effectively communicate with others? What does this support involve? (If aids/devices are used, please specify)’; question 1(d) asked ‘Will these supports, or any others you may recommend, likely reduce Mr Todd’s future disability-specific support needs? If so, how?’ The same kind of questions were asked in relation to the other activities identified in the letter, which were the ones found in s.24(1)(c), and which obviously included the two activities in issue in this case, mobility and self-care.
The letter requested, amongst other things ’examples . . . that demonstrate Mr Todd’s functional capacity’, ‘detailed observations’ and ‘detailed responses to the questions’. The various requests in the letter for detail to which I have referred were most probably informed by the observations of Mortimer J in Mulligan concerning the importance of a detailed functional assessment in the decision-making process.
The letter also said:
We require the assessment and subsequent report to be based on your observations and professional analysis of Mr Todd’s functionality. Please identify in your report whether you have observed the reported difficulties, or if you are explaining what had been reported to you as a difficulty. If you are unable to observe a relevant activity please ask Mr Todd to simulate the activity. For example, cooking, reaching to wash hair etc. (The underling is added for emphasis)
The letter did not in express terms require Ms Pordage to explain the reasons for her conclusions, but at least to some extent that was inherent in requesting that she express herself by reference to what she observed or was told or what was simulated.
There were some documents included with the letter which were the Tribunal documents, and some clinical records of Dr Musgrave, who was an orthopaedic surgeon who had treated Mr Todd. Ms Pordage was asked to have regard to those documents in preparing her report.
Ms Pordage provided her first report to the Agency after she met with Mr Todd for two hours at his home and shortly after the date the report bore. On the first page of the report the following was recorded:
This report has been written for the benefit of the Client to make recommendations for the type of support required to allow them to live safely in the least restrictive environment.
Ms Pordage explained in her oral evidence that she referred to Mr Todd as ‘the Client’ because she ‘named all subjects that I’m asked to do an assessment of as the client, or my client’ and that in referring to writing the report for the ‘benefit of the Client to make recommendations for the type of support required to allow them to live safely in the least restrictive environment’ she considered that to be her ‘general role as an occupational therapist’.
Later in the report under the heading ‘Purpose’ Ms Pordage said:
This report is prepared for the purpose of a proceeding in the Administrative Appeals Tribunal. An occupational therapy functional capacity assessment was completed to document the Applicant’s ability to complete daily activities and what supports they may require to live safely and independently in the community. (The underlining is added for emphasis)
The Agency submitted that because Ms Pordage had referred in her first report to issues concerned with ‘supports’ and because of her statements about how she saw her role she had ‘fundamentally misconceived her role’. These statements included things about how she saw her role as being ‘there to provide the person’s best care and to basically provide unbiased support for what I feel will work best for the person that will bring the best outcome’, that her role as an occupational therapist was ‘to help the person live their best life, that’s our professional role’ and that ‘part of the functional assessment is to help the person live their best life and using their through the lens too that I am not just going to take their word for it, I actually see my observation’. A particular question and answer from Ms Pordage’s evidence that was referred to was:
Are you saying that you of your own volition, you have chosen to talk about other supports, supports that this person might get if he were a participant in the scheme? --- No. From what I can see him able to do and what he can’t do, then my train of logical thinking is that what he can’t do, that’s when he’s going to require support. And what he can do, I will list that very clearly so the deduction there is what he can do versus what he can’t do and with him, he definitely was not independent. And it wasn’t just because he said so, but because it was very, very clear to see throughout the interview, throughout his action and throughout observation of his environment.

The Agency also referred to Ms Pordage’s statement at the conclusion of the second day of the hearing as supporting the view that Ms Pordage had misconceived her role. Ms Pordage’s statement, which was made emphatically, and seemed to have as its objective obtaining a decision there and then, or at least much sooner than the date to which the hearing was adjourned, was that:
I have one concern for the Applicant in terms of he’s not going to receive any support until then [a reference to the adjourned hearing date].
In dealing with how Ms Pordage understood her role, it should be remembered that the question of ‘supports’ was within the purview of the Ms Pordage’s first report because of the questions asked in Annexure A to the letter to her. Even though the question of ‘supports’ was not squarely raised in the body of that letter, that issue was alive because of what Ms Pordage was asked. In any event it seems, as Ms Pordage pointed out in her evidence, that in understanding what a person can and cannot do, the short step might be taken in the direction of ascertaining how they might compensate for what they cannot do, especially by someone with expertise in the field, by reference to supports.
The statements about doing the best for the particular person or helping the person live their best life are probably misplaced in the context of an expert who is required to give impartial evidence, but they may well reflect much about the professional position that people like occupational therapists stand in, namely one that directs attention to and focuses upon the welfare of the individual. The statements of concern about the Mr Todd’s welfare, such as that at the end of the second day of hearing, are fairly viewed as something that was most likely the result of Ms Pordage’s concern for the Mr Todd and some, perhaps considerable, lack of understanding about the nature of the process that lay ahead by way of the further hearing, completion of the parties’ cases and the need for the Tribunal ultimately to decide the matter. The statement should not have been made, and might better have been directed elsewhere, but I do not in the end consider that they form a basis for finding that Ms Pordage either prepared her report partially in a way biased in favour of Mr Todd or was acting not as an expert but as an advocate for one party, in this case, Mr Todd.
Further, even though some of Ms Pordage’s answers to questions were at times difficult to understand, and despite her statements about the risk to which she considered Mr Todd was at, I do not consider that those things were at odds with what Ms Pordage was asked to do and what was contained in her report. Ms Pordage set out in her reports what she considered Mr Todd was able to do and not do consistent with what a functional assessment is. It is true that there are aspects of the report that might be described as unsatisfactory for one reason or another, but I do not consider overall or in general there was any significant misunderstanding from Ms Pordage about what she was required to do, and nor do I consider when viewed overall that the reports disclose anything that would suggest a fundamental misunderstanding about what was required.
Next, it is necessary to deal with the contents of the reports, in particular the first report, so far as they deal with Mr Todd’s functional capacity, that is what Mr Todd is able to do and is not able to do. It is fair to say that this was a matter on which the parties were greatly at issue especially so far as reliance on the opinions expressed by Ms Pordage are concerned. It is necessary to approach the matter in a series of steps.
First, I do not accept that as a matter of general criticism that the first report does not clearly identify what tasks Ms Pordage observed and what tasks were reported to her by Mr Todd. As a general rule, the report identifies what Ms Pordage saw by using the words ‘Mr Todd was observed’ and what she was told by use of the words ‘Mr Todd reports’. It is true that there are other areas of the report where the reader is left to work things out such as where it is said ‘Mr Todd walks with an unstable gait…’ or ‘Mr Todd prefers to drive and park as close to…’ because in the first case it simply is the type of thing that would have been observed and so far as the latter example is concerned, there was no suggestion in the report that Ms Pordage went for a drive with Mr Todd so one would take it as something Mr Todd told Ms Pordage.
There are some other things referred to in the report that are less clearly expressed, such as Mr Todd’s inability ‘to lift and carry large, breakable spillable, heavy or difficult to grip objects while walking as he knows that this increases his chance of falls and other accidents’. This kind of observation leaves the reader to speculate about whether this resulted from what Ms Pordage was told or what she observed, or whether the opinion was arrived after some process of logical deduction. That is, whether the opinion followed from what she observed of the unstable gait with which Mr Todd walked and the incapacity to walk further than 100 metres without pain and the essential tremor, and from what she was told by Mr Todd, such as his reported inability to carry breakable and spillable items as he thought he might drop them, that she arrived at that conclusion.
The criticism of her report in failing to divulge the underlying rationale for some of the opinions expressed, in my assessment, is fair enough and is a matter to which I will return, but one needs to approach the matter with care. As I refer to later, a decision maker should not have to guess about why an opinion about whether Mr Todd can and cannot do something has been formed. The fact that the decision maker is left, in effect, to guess about such things is a matter that may detract from the capacity to arrive at the required state of satisfaction based on that report, or in other words to make the kind of evaluation contemplated by the access criteria. Even though many of these things were cleared up by questioning at the hearing, it does detract from the reliability of the report when it is some considerable time later that Ms Pordage is required to identify that which she observed and that which she was told. Nonetheless, there does need to be some level of common sense applied to understanding Ms Pordage’s conclusions in her report. Using the example in the previous paragraph it is not too much of a logical jump to deduce from a report that a person who is observed to walk with an unstable gait, who was only able to walk something less than 100 metres, who was observed to suffer from pain and had an obvious tremor, might have difficulty with carrying ‘breakable spillable, heavy or difficult to grip objects’. Ordinary experience, accompanied by Ms Pordage’s observations, suggest that her conclusion is more probably correct than not.
Second, it is also true that there were many tasks and actions that Ms Pordage did not ask Mr Todd to simulate during her assessment and that are certainly not directly addressed in any of the reports. For one thing, the role of an occupational therapist should not be reduced to something that involves the completion of a checklist involving answers by reference to simulated actions or tasks. Again, in not asking Mr Todd to simulate very many things, Ms Pordage was acting contrary to what the letter of instructions had asked her to do when it said ‘If you are unable to observe a relevant activity please ask Mr Todd to simulate the activity’. Some, but certainly not all, of the things that Ms Pordage said that Mr Todd could not do which were not observed or simulated by Ms Pordage were explained in her report. An example is that of meal preparation, which Ms Pordage said she ‘abandoned’ (although when questioned this was explained this as being ‘not even attempted’) the assessment after she observed ‘numerous scars from cuts to his fingers’ and her observation that the ‘hand tremors’ became worse when Mr Todd tried to use his hands. Ms Pordage balanced her observation about cutting and chopping by recording what Mr Todd told her he could do by way of meal preparation such as making simple sandwiches, making a meal supplement such as a shake and purchasing cooked meals.
I do not consider it was necessary to have Mr Todd simulate each and every task or action in order for Ms Pordage to express an opinion about it. For one thing Ms Pordage was entitled, as she said in her oral evidence, to desist from insisting on simulation where she considered that Mr Todd should not be placed in a position where he suffered pain because of any simulation requested. But the report should have indicated that some or any simulations were not undertaken for that reason.
That should be balanced against the fact that Ms Pordage was in a position, because of her training and qualifications, to draw conclusions about some things from what she in fact saw, and other things that she was told and saw and, as well from the documents and provided to her by the Agency. The consequences that followed from the essential tremor are a good example and I refer to them more later. Nonetheless, so far as the report did not identify the things that were not simulated, explain the reasons why they were not simulated or explain the reasons for the conclusion that Mr Todd could not do those things, it fell short of what was required because the reader of the report was unable to understand the basis for the conclusions arrived at which would be essential to forming a satisfaction in evaluating what Mr Todd was able to do or was not able to do. Again, that needs to be approached both with care and common sense. Having seen in evidence the nature of Mr Todd’s essential tremor and heard Dr Prasad’s evidence that Mr Todd’s tremor was severe, it is, for example, unsurprising that Ms Pordage concluded that Mr Todd would have difficulty cutting vegetables and food goods with a knife or have difficulty with tasks like cutting his finger and toenails because they involved the use of fine motor skills.
Third, Ms Pordage did not question some of the things Mr Todd told her he was able to do such as toileting, dressing, taking his own medication, showering (except for washing his hair), making some kinds of meals and shakes, doing his shopping in the supermarket, driving his car for short distances, and getting in and out of his motor vehicle. I do not consider there is anything necessarily unsatisfactory with Ms Pordage accepting Mr Todd’s word about some of the things Mr Todd said he could do without putting it to the test or asking to see it done especially because, in very many respects, the functional assessment was more concerned with what Mr Todd could not do. It is a little curious that Ms Pordage did not ask to observe Mr Todd doing some of the things he could do, rather than simply accepting his word about them, but it does not affect the substance of her conclusions about Mr Todd’s inability to do things.
Fourth, Ms Pordage appears to accept, or worse assume, other things that Mr Todd could not do without inquiring into them at all. There are a range of tasks or actions, such as Mr Todd’s ability to do some household tasks such as loading and unloading the washing machine and dishwasher, sweeping the kitchen floor, putting the garbage out, wiping benches and basins, or things like making a cup of coffee or writing or using a computer to type things. Ms Pordage did not express a clear or reasoned opinion about whether she considered Mr Todd could do those things in her report. Mr Todd’s evidence was that he could do some of them although with some of them he needed to be careful. It needs to be remembered that the letter of instructions asked Ms Pordage to provide ‘details regarding the current impact of Mr Todd’s condition’ and ‘details of any functional impact on Mr Todd’s ability to undertake activities in relation to communication, social interaction, learning, mobility, self-care and self-management’. It seems much of the required detail was missing.
A good example is to be found in Mr Todd’s evidence that he could write, but that he did so ‘really badly’ and as he was not writing much, he ‘generally typed it out or wrote in capitals’. That evidence was at odds with what Ms Pordage said in her oral testimony, but not in her report, about Mr Todd’s ability to write. She said:
…you can just see from the tremor, if he’s having difficulty getting a large needle into a hole which is about half a centimetre in diameter, like threading it through, while it’s shaking off, there’s no way he’s to be able to hold a pen. You just – your common sense tells you that that it’s a waste of time, my time, his time and it’s going to cause tears which is what an OT says we’re not supposed to do.
The evidence was unsatisfactory, with Ms Pordage saying at one point in her evidence that Mr Todd ‘types slowly. He does make mistakes and he has to press the back button’ but then later saying that ‘he didn’t actually type the words into the laptop, he just showed me the laptop was sitting on the desk where it usually lives and that’s where he does his work from.’ None of this detail, as unsatisfactory as it was in any event, was set out in the report.
Although writing or typing is not central to the activities to be considered, that evidence starkly illustrates one of the difficulties with in failing to approach Ms Pordage’s evidence with considerable care: in general, so far as tasks and actions were not dealt with in Ms Pordage’s report, I should be careful about accepting that Mr Todd is unable to do them without a sound foundation for doing so, whether that be by way of other evidence or information, or some logical or rational process of deduction from what is said in the report.
Further, I should be careful about Ms Pordage’s evidence so far as it proceeds upon assumptions. Ms Pordage gave some evidence about Mr Todd having arranged his furniture so that he could move through the house by having those things available to lean on. The evidence was curious because Ms Pordage did not ask Mr Todd whether he had arranged the furniture that way for that purpose.
Fifth, the absence of important things in Ms Pordage’s report that were the subject of her oral evidence is of concern. In particular, as I discuss below, the omission of significant things and much of the detail about them so far as Mr Todd’s capacity to walk is important especially in the context of instructions that specifically sought detail about such things. I will return to this when I consider the specific issues involving the activities of mobility and self-care. For now, it is sufficient to say that the omission from the report of Mr Todd being at the ‘highest risk of falls,’ or any reference to Mr Todd being at risk of falling when he walks what is described as the limited distance of 100 metres which was adduced orally as against the unqualified statement in her report that Mr Todd is able to mobilise on his own and is able to walk distances up to 100 metres, is a matter that also causes me to approach Ms Pordage’s report and expert opinion with some care in evaluating Mr Todd’s functional capacity to engage in the activities of mobility and self-care more generally.
Sixth, and most significantly, that Ms Pordage herself called her first report into question because her report had been written many months, more than six months, before she gave oral evidence. Ms Pordage said that she had to ‘honestly say that I would not count it with a 100 per cent accuracy. You don’t even know if the persons alive after six months’. Ms Pordage’s doubts about her report’s accuracy because of its age was difficult to understand because Mr Todd’s impairments were permanent, and it is difficult to see how or why things may have changed by way of functional capacity in that light. The reference to ‘100 per cent accuracy’ should probably be understood to reflect Ms Pordage’s concern that things may have changed at the margin rather than substantially. Even though there was no sound basis put forward by Mr Todd as to why a more up to date report from Ms Pordage could not have been obtained or why other evidence could not have been obtained that was, unlike Ms Pordage’s evidence, not qualified in time, a practical approach needs to be taken to the matter. There was no suggestion that the nature of Mr Todd’s impairments are other than permanent and on the evidence of at least Dr Prasad things were unlikely to improve for him. There was no suggestion that his essential tremor had changed or that there had been, for example, any change in his condition that meant his unstable gait or the pain he experienced from walking distances over 100 metres had altered.
Finally, I do not accept Mr Todd’s submission that without some foundation or exposition of her reasoning, I must accept Ms Pordage’s conclusions about what Mr Todd could and could not do simply because they were matters of ‘professional judgment’. It is the decision maker that must achieve a state of satisfaction about Mr Todd’s functional capacity, and that satisfaction should not be informed by ‘because I say so’ statements from an expert witness or other witness, but rather should derive from an expressed factual foundation and reasoned basis for the expression of opinion. The exposition of the detail underlaying opinions as well as the reasoned analysis for why they have been formed or expressed is of vital importance to a decision maker having the confidence to evaluate the opinion so as to arrive at the requisite state of satisfaction. Nonetheless, firsthand observation of things like an unstable gait or a tremor or even the experience of pain and fatigue are matters that expose why a conclusion about one thing or another has been arrived at. On the other hand, conclusory statements, for example, that a person can, or more relevantly, cannot load washing into a washing machine where that has not been observed and there is no sound explanation why the conclusion has been arrived at are unlikely to assist in establishing any satisfaction about whether that is something a person can or cannot do.
Before going further I should observe that the fact that there were ‘mistakes’ in her reports that arise from the matters referred to earlier in relation to Mr Todd’s evidence are not matters that cause me to have any great concern about the reports. This is because the matters where the mistakes were identified, the origins of Mr Todd’s accommodation and the number of bedrooms for example, are, as I have said, immaterial to what Ms Pordage was really required to do.
The matters to which I have referred are all matters that suggest, as I have been at pains to emphasise, care must be taken with Ms Pordage’s evidence but I do not think they form a basis for rejecting her evidence generally. In general, I will proceed with caution so that where Ms Pordage has dealt with issues specifically and provided some foundation or reasons for her opinions, I am inclined to have regard to and give weight to her observations and opinion. For example her opinions about Mr Todd’s ability to walk so far as it referred to his unstable gait and the pain and fatigue that he suffers, or her opinion about his ability to use a knife to chop things which was informed by reference to Mr Todd’s essential tremor. I am less likely to give weight to Ms Pordage’s opinions where there is no observation, explanation or satisfactory foundation for them.
On the other hand, I do not accept her evidence where it is inconsistent with Mr Todd’s own evidence about what he can do, or where it is based upon facts that were not in evidence or, especially, about matters of significance that did not find their way into her reports, or were not sufficiently explained in her reports, or were inconsistent with her reports. I approach her evidence cautiously having regard to the basis upon which her particular opinions were expressed and reasoned and in the light of Mr Todd’s evidence, and where relevant that of Dr Prasad and Dr Musgrave.
THE ACTIVITY OF MOBILITY

This part of the access criteria involves consideration of the first issue that I referred to earlier, namely whether Mr Todd’s permanent impairments result in substantially reduced functional capacity to undertake the activity of mobility. The activity of mobility involves consideration of a person’s capacity to move around their home by walking/crawling, undertake the activities of daily living, get into and out of bed and chairs, leave home, move about in the community and perform tasks that involve the use of limbs.
Mr Todd’s case was that his impairments ‘cause problems with his gait, with stability and of pain that substantially reduce his functional capacity to move around his home and the community, particularly because of his risk of falls’. Further, so far as r.5.8(a) and (b) are concerned, Mr Todd’s case is that he is not able to participate effectively or completely in the activities of mobility, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of mobility without assistive technology or equipment or that he usually requires the assistance of a person to perform tasks or actions required to participate in the activity of mobility. The Agency took issue with Mr Todd’s case.
The evidence concerning Mr Todd’s ability to engage in the activity of mobility was his own, that of Dr Prasad and that of Ms Pordage. The Agency also referred to some of the evidence given by Dr Musgrave, an orthopaedic surgeon who had treated Mr Todd and to Dr Navin Jain’s report that was attached to Mr Todd’s access request form.
Dr Prasad expressed the opinion that Mr Todd’s mobility is ‘severely restricted’ because of his impairments. He was unable to express an opinion about how far Mr Todd could walk. Dr Prasad confirmed Mr Todd’s evidence that Mr Todd had fell and grabbed a table in Dr Prasad’s room the day before Mr Todd gave his evidence. This was in a context where Mr Todd was demonstrating to Dr Prasad the instability that he suffered as a result of the impairment to his ankle. The generality with which his evidence was expressed makes it difficult to say much about the extent that Mr Todd’s functional capacity is restricted by reason of his impairments, but the views of a medical practitioner generally about a patient who has impairments like Mr Todd should not be readily put aside. Those views certainly point in a particular direction.
The main focus of the evidence so far as Mr Todd’s participation in the activity of mobility concerned his ability to walk, to move around his home to engage in the activities of daily living, to move about in the community and to engage in other tasks requiring the use of his limbs. I will deal with each separately, but before doing so it is necessary to observe that Mr Todd was able to get into and out of bed (albeit he may need to support himself on furniture before doing so) was able to get into and out of a chair and was able to leave his home.
Walking
Mr Todd’s evidence about his ability to walk was that when he is walking, he is in fairly constant pain. He said that he usually has to stop after about 100 metres because the pain becomes strong. Mr Todd said that when he walks, he needs to constantly check his ankle and take care because it rolls out from underneath him causing him to stumble or fall.
Dr Navin Jain, a general practitioner who prepared a short report that was attached to Mr Todd’s access request form submitted to the Agency said that Mr Todd’s:
…knee, ankle injuries limit walking, then his back injuries and pain also affect Adrian’s ability to independently move around.
…
Adrian’s ankle injuries cause his ankles to be unstable and results in falls, pain and suffering along with isolation.
…Adrian has an inoperable left ankle injury that not only causes pain and suffering but instability and falls,,
Stairs are also a concern, due to his knees and ankle injuries, so these are avoided if possible by Adrian. Risks of falls and pain.
There was no controversy between Dr Prasad and Dr Jain about the fact that much of Mr Todd’s condition was associated with pain. There was no suggestion in any of the evidence, or submissions, that a significant feature of Mr Todd’s impairments was pain; that pain fairly obviously had as its origins very many of his diagnosed impairments.
Ms Pordage’s evidence was, in addition to what the Agency told her and provided to her by way of documents, based on what she saw for herself and what she was told by Mr Todd when she visited Mr Todd on 7 December 2020. That visit was for about two hours. As I have observed in her first report, Ms Pordage completed an ‘occupational therapy functional capacity assessment . . . to document [Mr Todd’s] ability to complete daily activities and what supports they (sic) may require to live safely and independently in the community’. I will deal with Ms Pordage’s evidence having regard to what I have earlier said about it.
In her first report Ms Pordage, in the body of the report, recorded that:
Mr Todd walks with an unstable gait due to long term Polyarthropy or arthritis in multiple joints. Mr Todd reports experiencing multiple incidences of falls despite attempts to avoid and prevent these falls. He knows how dangerous falls are and was observed holding onto walls, door frames and furniture to steady himself. Mr Todd was observed to have a limited walking distance of around 100 metres due to fatigue and pain.
In addressing the questions in Annexure A Ms Pordage, after answering a general question about Mr Todd’s capacity to mobilise by saying ‘Mr Todd is able to mobilise on his own’, was asked a further question:
Please quantify and comment on Mr Todd’s walking tolerance indoors and outdoors, with and without the use of aids (please specify, how far Mr Todd can walk, on what surfaces, how long Mr Todd needs to rest before resuming walking and what aids, if any he uses in the assessment (sic) of walking tolerance with aids).
Ms Pordage answered that question by saying:
Mr Todd was observed to walk approximately 100 metres on flat and stable surfaces both indoor and outdoor before pain and fatigue caused him to stop. Mr Todd was observed requiring a 30 minute break sitting down before he could walk stably again. He reported being unable to maintain walking on uneven surfaces as his ankle may roll and cause a fall.
Mr Todd wears boots which provide some ankle support. He finds wearing overly supportive orthotic boots too restrictive and contributes to pain in his neck and back. He also reported having a walking stick but did not use it because it causes pain in his shoulder and neck. Any other walking aids, such as a walking frame or a manual wheelchair would not be suitable as Mr Todd does not have the ability to sustain pressure through his neck and shoulders.
The next question and answer were:
What type, level and frequency of assistance (if any) does Mr Todd need to support him to independently mobilise? What does this support involve (If aids/devices are used, please specify).
Mr Todd will require to manage his reduced ability to walk by using supports to complete activities that require walking. Mr Todd will require very high physical assistance on a weekly basis to complete tasks that involve walking.
(The underlining is added for emphasis)
Ms Pordage said that Mr Todd did not receive any support related to his mobility and that Mr Todd ‘finds himself confined to the house a lot of the time’. Ms Pordage also said that ‘Mr Todd may want to explore the option of compensatory aids such as power mobility with a joystick control in the future when pain and reduced mobility become dysfunctional’. Ms Pordage explained in her evidence that what she meant by that was ‘that if he gets to the stage where he can’t get around and do what he has to do, then he may need further assistance technology to help him to better get around’. The reference as I have emphasised was to the future, and not Mr Todd’s capacity at the time of her report’s preparation. It is relevant though to the fact that when Ms Pordage prepared her report as she saw things so far as Mr Todd’s ability to walk was concerned, that indicated it was only likely to deteriorate. I do not accept Ms Pordage’s oral evidence that her opinion was that Mr Todd should now explore the option of a joystick mobility scooter, which was at odds with what was said in her report. It is not clear why Ms Pordage changed her opinion and in the absence of some clear reason for doing so I will not give any weight to her evidence about that matter.
Ms Pordage said in her oral evidence that it appeared to her that Mr Todd ‘knows where the walls and furniture is (sic) and it can be seen quite plainly that he’s basically, yes, put furniture and things in place so he can hold onto on the way in and out of his house.’ In her oral evidence Ms Pordage said that Mr Todd:
…seems to be unstable generally, not just in his ankle. Just his whole posture. He was not walking normally. His gait was abnormal, and he was having to hold on to things to make up for that – the inability to put weight straight through from his hip through to his knee and to his ankle. Just the whole body posture.
As I have indicated so far as Ms Pordage’s evidence about why the furniture and things were placed where they were, I do not consider her assumption to be relevant to any consideration of Mr Todd’s ability to walk around the house. It is relevant though that Mr Todd was able to and needed to steady himself on walls and furniture when walking around the house.
Ms Pordage explained in her oral evidence that the reference to walking 100 metres was the total distance Ms Pordage saw Mr Todd walk during her assessment, although she went on to say the total distance was probably shorter than that. None of her reports said that explicitly.
Ms Pordage explained in her oral evidence that the furthest Mr Todd could walk ‘in any one go’ was much shorter than 100 metres and ‘was probably more like two [metres] before he’ll (sic) have to hold onto something to steady himself.’ There was no similar statement about Mr Todd not being able to walk two metres without holding on to something in her reports, but, fairly, her earlier reference to Mr Todd having to steady himself as he walked around by holding on to things is consistent with that. Further, the statement in the first report about Mr Todd’s capacity to mobilise on his own was not accompanied by any qualification about being at risk of falling when mobilising but, when fairly viewed, her observations about Mr Todd needing to hold on to things to steady himself and walking with an unstable gait, which appear in the same report, are consistent with the view that he was at risk of falling otherwise. Ms Pordage explained in her oral evidence that before exerting himself by walking to the bedroom and getting in and out of bed, Mr Todd had been able to walk longer distances, about seven metres, without steadying himself by holding onto something. Ms Pordage observed that Mr Todd when walking about 15 metres from his bedroom to the dining room ‘he looked like was walking quite uncomfortably on his hip and shoulder joints. He just did not look like a stable person who had easy movement’.
Some of the details of these actions were not included in her report but were consistent with the things Ms Pordage observed about Mr Todd needing to hold on to things when he was walking around the home and being in pain, and tired to the point when he eventually needed to rest, which was found in her report. I do not consider that the shortcoming in the report in providing the kind of detail about distances after which Mr Todd needed to steady himself whilst walking around his home should be ignored, but contextually it is consistent with what is in the report. Ms Pordage’s report about what she observed is reliable so far as it records the fact that she observed Mr Todd walk a distance of something less than 100 metres before pain and fatigue set in to prevent him walking further, and that there were factors associated with his walking that concerned stability, his unstable gait, his need to steady himself on things around him and the fact that after he rested, he could walk ‘stably again’. Ms Pordage’s evidence about pain causing Mr Todd to stop walking after about 100 metres was also consistent with Mr Todd’s evidence.
I accept Ms Pordage’s evidence at least so far as it suggested that Mr Todd would be able to walk short distances (something less than 100 metres) but not long distances (more than 100 metres) before he needed to stop because of pain and fatigue. I also accept her evidence that she observed Mr Todd needing to stabilize himself whilst he was walking around his home. That appears to be clearly expressed in her first report from what she observed and is consistent with Mr Todd’s evidence. To the extent that pain was associated with walking and that there was instability when he did walk it is also consistent with Mr Todd’s evidence and Dr Jain’s evidence.
Next, there was some argument about Mr Todd’s capacity to walk on ‘uneven surfaces’ or upstairs. There was no exploration or details about any particular types or kinds of ‘uneven surfaces’. So far as Ms Pordage saw Mr Todd walking on ‘uneven surfaces’ it was when Mr Todd walked from his front door to her van at the end of the visit which, at one stage, involved him having to move down one step. However, rather than the remainder of the surface, the step was the only thing that Ms Pordage considered ‘uneven’. There was not much to be found in any of her reports dealing with ‘uneven surfaces’ although it is recorded that Mr Todd would have difficulty walking in the community over distances of more ‘than 100 metres from his parking space or are located up a flight of stairs’. There was no exploration of why ‘a flight of stairs’ was significant. Ms Pordage expressed the opinion in her oral evidence so far as stairs were concerned that Mr Todd:
…would definitely need to hold onto railings and then after an attempt it will probably cause him a lot of pain which will then increase his falls – risk of them further. So I wouldn’t recommend for him and his safety to go up and down stairs.
One difficulty with this opinion is that Ms Pordage prefaced this evidence by saying she had not assessed Mr Todd on stairs. Ms Pordage expressed the opinion that it would be unsafe for Mr Todd to walk on uneven surfaces not because she saw him walk on those surfaces, but because:
…he just looked unstable. Like he looked unstable on a flat surface, so why would you put someone to walk on uneven surface when they’re not – don’t even look safe on a flat surface with – and he’s holding on to the back of lounge chairs. He was holding on to walls. He was holding on to door posts, whatever. If there was a stable flat surface, he knew where it was and his hand would go for it. So, it’s just not a good common sense things to do, especially when I didn’t have someone specifically standing behind Adrian holding on to his waist.
Although not expressly dealt with in her report, which is a little unsatisfactory, I am satisfied based on Ms Pordage’s observation in the report concerning Mr Todd’s need to steady himself on furniture and other items, and her oral evidence that Mr Todd would have difficulty walking on some kinds of uneven surfaces especially where he was unable to steady himself. I am unable to determine the extent of any difficulty because there was no evidence about the types of ‘uneven surfaces’ that might create any such difficulty and there was no detail provided about the matter. There is, in Mr Todd’s own evidence and to some extent in Dr Jain’s report, support for the conclusion that Mr Todd would have difficulty because of pain and the risk of falling in walking up stairs.
I should specifically say something about Mr Todd’s risk of falls. Mr Todd told Ms Pordage that he had experienced ‘multiple incidences of falls despite attempts to avoid and prevent’ them. Ms Pordage’s observations led her to express the opinion in her oral evidence that Mr Todd was ‘the highest falls risk’ which meant that on a range of low, across medium to high risk she considered his risk of falling to be very high. Ms Pordage expressed the opinion that the risk of falls for Mr Todd meant that his ‘current method of getting around his house is unsafe’. Again, so far as Ms Pordage dealt with Mr Todd’s risk of falls, it was not something that found its way into her reports in anything like the way it was expressed in her oral evidence. Given its apparent importance to the question of mobility, and specifically walking, it is a little remarkable that it was not squarely stated in her reports. It is necessary to have regard to some of the other evidence about Mr Todd’s risk of falls but it needs to be considered against the general background of Ms Pordage’s evidence about Mr Todd’s general instability, which I accept.
Mr Todd put the risk of his falls down to his ankle injury. Dr Prasad and Dr Jain also put Mr Todd’s falls down to his ankle joint. Ms Pordage put it down to his ankle but also to the fact that ‘he seems to be unstable generally’ and in her second reports as a result of ‘multiple causes‘ and, so far as uneven surfaces were concerned, to his ‘sciatic nerves being impinged by his disc damage’. Mr Todd’s evidence was that if he was ‘not constantly checking the position of my ankle as I walk, I am likely to fall. Falls can happen very easily for me and occur almost daily. I feel like I am on constant guard that my ankle could roll any moment causing me to fall’. That evidence suggests at least on its face that Mr Todd is able to walk distances of up to about 100 metres, so long as he takes sufficient care to check on the position of his ankle. That question about Mr Todd being constantly on guard in relation to the position of his ankle was not explored in any of Ms Pordage’s reports.
Mr Todd gave examples of occasions when he had fallen, such as when he was putting the garbage out or when visiting the physiotherapist one day. He did not give any other examples, and even those examples were fairly general, being identified by reference to putting out the garbage or the visit to the physiotherapist but not containing any other content or detail. The only particular and corroborated evidence of a fall was that of Dr Prasad, who saw Mr Todd fall the day before the hearing when Mr Todd was demonstrating his instability in his ankle and fell. It is unsurprising that whilst demonstrating his instability that Mr Todd fell. Mr Todd also gave the example of one occasion when he fell over going to his physiotherapist spraining his wrist, grazing his knee and being disorientated for a few days. That incident on the face of things seems to have been fairly serious but was not subject to a visit to the doctor and there was no other direct or indirect corroboration from anyone. Mr Todd’s evidence was he fell over ‘every day’, although he made clear that this was different from ‘falling right over’ which happened less often, the last occasion being about two weeks earlier. Not falling right over is most likely a reference to stumbling. Mr Todd said there were occasions when he had fallen over in his home where he needed to crawl and use an item such as the toilet or bath and pull himself up.
During her assessment, Ms Pordage also saw Mr Todd transferring on and off his bed describing him ‘twist hid (sic) body to the right, using his momentum to help get his feet into bed and doing the opposite in getting out of bed’. Ms Pordage described in her evidence seeing Mr Todd stumble and start falling as he stood up when getting out of bed, stumbling, and catching himself of a piece of nearby furniture and pulling himself up. It seems likely that that may be the usual way of things so far as Mr Todd’s falling is concerned. The same sort of scenario was illustrated by the ‘fall’ in Dr Prasad’s surgery which I referred to earlier.

One difficulty about the evidence of Mr Todd’s risk of falls is in Dr Musgrave’s evidence. That evidence was to the effect that that although Mr Todd had had ankle surgery some many years ago, and Dr Musgrave specifically recommended the use of ‘ankle braces’ and ‘high tech ankle boots’, Mr Todd’s concern about his ankle and it causing him to fall had not been raised by Mr Todd with Dr Musgrave more recently, nor had he, on the evidence, invested in the types of assistive products recommended by Dr Musgrave for his ankles. It was suggested that it was apposite that the issue about falls and it relating to Mr Todd’s ankle, which was Mr Todd’s own position, had not been raised with Dr Musgrave by Mr Todd given the frequency with which he said his falls occurred and, at least, so far as the occasion when he fell when going to the physiotherapist is concerned, given its seriousness. Mr Todd did raise with Dr Musgrave the issue of falls on two occasions, one in 2011 and one in 2013, but had not done so more recently. It is not useful to speculate about the reasons why Mr Todd may not have raised the matter with Dr Musgrave. An explanation might be that he did not fall over as often as his evidence suggested. Another might be that he did not think that Dr Musgrave could help further with his ankle because his ankle condition was regarded as inoperable: that is, he simply accepted nothing beyond what Dr Musgrave had prescribed years earlier could be done to help him. Another might have been because more recently the reason he was seeing Dr Musgrave was about his knee and he did not consider there was any reason to raise issues concerning his ankle. In any event, I do not consider in the end the explanation matters greatly given the other evidence about Mr Todd’s instability and the pain and fatigue he suffers when walking for distances of more than 100 metres.
I consider that Mr Todd is, because of his instability, at risk of falls if he does not take sufficient care in stabilising himself or in the way he places his ankle down. The risk very much seems to be something that was mitigated by Mr Todd taking care, or as he said ‘constantly checking the position of his ankle’ or as Ms Pordage observed by stabilising himself on environmental supports. I am not satisfied that Mr Todd is at high risk of falls or falling especially if he takes care about how he walks or how he balances or stabilises himself. Ms Pordage’s evidence concerning reference to Mr Todd’s unstable gait and him holding on to things provides a foundation for a conclusion that Mr Todd is at risk of falls when he walks, but I am unable to determine the level of risk other than that on the evidence it seems to be both real and constant.
I am satisfied so far as his ability to walk is concerned Mr Todd’s capacity to walk is greatly reduced because of his permanent impairments. The reduction in his capacity to walk means that he is unable to walk distances for more than 100 metres in any one go, and at times less than that, before he is required because of pain and fatigue to stop and rest. I am satisfied that his capacity to walk is also reduced, because in order to do so it is necessary for him to steady or stabilise himself by using environmental supports which, if not available, leaves him at greater risk of falling. I am also satisfied that his ability to walk is reduced because he is at risk of falling. I am satisfied that his capacity to walk is reduced because he needs to avoid stairs and some other types of surfaces which present a risk to him. I am satisfied because of his instability and the risk of falling that Mr Todd is unable to participate effectively or completely in the activity of mobility safely walk because the risk created by his instability and pain means he might fall.
Moving around in the community
So far as Mr Todd moving around in the community is concerned, it is unnecessary to repeat in any general way what I have already said and concluded about Mr Todd’s ability to walk. Ms Pordage said in her evidence that she considered that, in order for Mr Todd to mobilise safely in the community, he would need to be dropped to distances closer to where he needed to be so that he did not need to walk far. Ms Pordage said that even then, where he was required to walk on uneven surfaces, someone would need to walk with him and ‘maybe put their elbow out so he can lean on them’. Again, the matter of uneven surfaces in that scenario was not canvassed in her report where the suggestion was that that upon being dropped somewhere or driving and then parking, ‘close to where he needed to be’ Mr Todd would be able to walk albeit on stable surfaces for up to 100 metres and did not refer at all to any need for him to have someone to lean on in those circumstances. Nonetheless, her evidence about Mr Todd needed to stabilize himself on furniture and the like generally supports the conclusion that Mr Todd would, when walking around in the community, need at times to stabilise himself whether on things or through the assistance of others.
Ms Pordage also expressed the opinion that Mr Todd was unable to use public transport because he lacked ‘balance to avoid falls whilst using public transport’. Again, although Ms Pordage did not see Mr Todd using public transport, her evidence generally about what she saw about Mr Todd’s unstable gait and walking in and around his house steadying himself provides a sound basis for her opinion about Mr Todd’s inability to use public transport. Mr Todd said he could not use public transport for much the same reasons as Ms Pordage. I accept his evidence about that matter.
Mr Todd is able to drive although his evidence was that he is limited because of his impairments. For example, when driving Mr Todd confines himself to areas where he does not need to turn because turning causes him pain and he only drives for something like 30 minutes at a time. He is able to drive his daughter to school when she stays with him, but significantly there are ‘maybe three or four stops and three or four turns’ to her school and the journey is about 15 minutes away. He can drive his daughter to medical appointments that are close by. I accept his evidence about the limitation on his capacity to drive.
I am satisfied that Mr Todd is able to move about in the community by being driven, or driving himself, to places close by to where he needs to be. His ability is limited because he can only walk distances of no more than 100 metres once he is at a particular location. Mr Todd is unable to use public transport because of the risk it poses to him in falling. Mr Todd is unable to drive for long periods. Mr Todd’s ability to mobilise in the community is reduced because of his limited capacity to walk.
Daily living and tasks involving the use of limbs
In relation to undertaking tasks and actions involved in daily living requiring the use of limbs are concerned, I am satisfied that Mr Todd is able to complete many of the ordinary activities of daily living that require the use of his limbs. His evidence, which I accept, is that he can load and unload the dishwasher albeit with a little difficulty, he can load and unload the washing machine and dryer (although he cannot hang washing out or take it off the line or iron his washing), he can use a microwave, he can pour half a glass of water and drink it, he can use his laptop and telephone.
In her first report Ms Pordage expressed the opinion that:
Mr Todd will require assistance with household maintenance tasks that involve standing for long periods, twisting and bending, repetitive movements and fine motor control. He will require assistance with washing, ironing, cooking, shopping, cleaning, gardening and home maintenance tasks.
It is important that Ms Pordage did not express the view that Mr Todd would need someone to do each of the tasks she referred to but confined herself to an opinion that Mr Todd would require assistance with those tasks. Ms Pordage’s evidence so far as Mr Todd requiring assistance with tasks involving twisting and bending was consistent with Dr Jain’s evidence that these were ‘of concern’. Mr Todd said that if he did tasks that involved twisting or turning such as cleaning or vacuuming, they would involve pain for him. It should be remembered that many of Mr Todd’s impairments are pain related.
Mr Todd said he could do some of those tasks such as washing, shopping and some aspects of cleaning, but his ability to do the shopping was reduced by reason of his need to park close to the shops and only to carry light bags. His ability to do cleaning tasks was limited by his inability to do some cleaning tasks like vacuuming because, as I have said, of the twisting involved. Mr Todd said he could not do ironing without pain because of the movements involved. He was unable to mow the lawn. So far as vacuuming and mowing the lawn were concerned, he had other people, his daughter and a friend’s son, do those tasks.
After providing her first report Ms Pordage was specifically asked in a letter dated 28 April 2021 from Agency’s solicitors:
If Mr Todd’s knee impairment were excluded from consideration, would his other physical impairments prevent him from participating effectively or completely in other tasks in the home which require the use of his limbs. Please specify which other impairment(s) (if any) to which such inability relates.
To which Ms Pordage provided an answer in her second report:
If Mr Todd’s knee was excluded from consideration, his other physical impairments would prevent him from participating in other tasks in the home which requires(sic) the use of his limbs like the preparation of his main meal, laundry, dish washing and garden maintenance. This is due to the tremor in his hands along with the pain and weakness in his legs when he need (sic) to (sic) standing for longer than 30 minutes.
The reference to dishwashing is ambiguous, in that it is not clear whether it refers to loading a dishwasher or manually dishwashing. The reference to preparing a main meal appears to refer to the limits on Mr Todd’s capacity to cut things with a knife because of his essential tremor, to carry items like bowls and plates because of his instability and essential tremor, and to his limitation of being unable to stand for more than 30 minutes. I have earlier dealt with the common-sense conclusions that follow from Mr Todd’s essential tremor and his use of his hands to perform tasks. The severity of his essential tremor means he is unable to use a knife to prepare food, unable to pour and drink from a full glass or boil and pour water from a kettle. So far as any finding based on Ms Pordage’s evidence about these things is concerned I am able to put weight on it, because of her expression of the underlying basis for her conclusion she arrived at. I accept Mr Todd’s evidence that he cannot do those things because of the pain he suffers in doing things that require lifting, bending, kneeling, twisting and standing or sitting for long periods of time, or because of his essential tremor. I also accept his evidence that he cannot do tasks in the kitchen that involve him standing for long periods because of the pain it causes him.
It was suggested that Mr Todd might be able to purchase pre-cut vegetables and therefore avoid any need to cut vegetables and food. To approach the matter this way is at odds with the focus of the enquiry which is upon what a person can and cannot do so far as this aspect of the matter, in the activity of mobility and in particular, the performance of tasks that require the use of limbs. Cutting food stuffs is not something Mr Todd is able to do.
Mr Todd is able to make simple meals such as sandwiches or shakes that do not involve standing for long times or the use of fine motor skills. He is able to do some household tasks that involve use of his limbs such as loading the dishwasher (although at times he needs his daughter’s help) and washing machine.
The evidence established that there are tasks and actions that involve the activities of daily living that involve Mr Todd’s use of his limbs that Mr Todd cannot do such as those involving vacuuming, ironing, using the stove top to cook things, chopping vegetables with a knife, drinking water from a full glass and gardening, including lawn mowing.
Assistive technology and help from others
It is next necessary to consider what assistive technology or equipment (other than commonly used items) might be required by Mr Todd, and whether Mr Todd will usually require assistance from other in completing tasks or actions in the activity of mobility.
Ms Pordage rejected the suggestion in her report that walking sticks, walking frame and manual wheelchairs would be appropriate for Mr Todd. She also said in her reports that Mr Todd ‘may want to explore the option of compensatory aids such as power mobility with a joystick control in the future when pain and reduced mobility become dysfunctional’. In her oral evidence she suggested that she would now recommend that Mr Todd use a joystick mobility scooter. This did not sit well alongside what she said in her report. Her different views on the matter are such that I am not prepared to make a finding based on the evidence about the issue. Her evidence about that matter is, in the view I take, unreliable.
In her evidence Ms Pordage referred to some other specialist equipment that Mr Todd could use to assist him such as a special disability trolley for preparing food in the kitchen, a tippy kettle and an anti-tipping and slipping cup. I am satisfied that that is special disability equipment and that without it, Mr Todd is cannot effectively or completely participate in the tasks or actions of preparing food and pouring and drinking from a full glass.
Ms Pordage said in her first report in answer to the specific question:
What type, level and frequency of assistance (if any) does Mr Todd need to support him to independently mobilise? What does this support involve? (If aids/devices are used please specify.
by saying:
Mr Todd will be required to manage his reduced ability to walk by using supports to complete activities that requires (sic) walking. Mr Todd will require very high physical assistance on a weekly basis to complete tasks that involve walking.
Physical assistance was defined in Ms Pordage’s instructions to mean physical assistance by another person. This, so it seems, was responsive to Ms Pordage’s conclusion in her report about Mr Todd’s limited ability to walk around his home without steadying himself and needing to drive and park, or be to be driven and dropped off, within 100 metres of his destination because he could walk no further than that without having to have a rest of up to thirty minutes as well as his limits on walking on some kinds of surfaces and on stairs.
Conclusions about the activity of mobility
I consider that that r.5.8(a) is engaged because Mr Todd is unable to perform tasks or actions, namely cooking, drinking and boiling water required to undertake or participate effectively or completely in the activity of mobility without assistive technology or equipment such as specialist disability trolley, and anti-tipping and slipping cup and a tippy kettle.
I consider that r.5.8(b) is engaged because Mr Todd usually requires physical assistance from other people to perform activities that involve walking and in performing tasks of daily living that involve use of his limbs such as ironing, cooking, vacuuming, gardening including mowing his lawn which is necessary to undertake or participate in the activity of mobility.
I am also satisfied that Mr Todd’s functional capacity is substantially reduced because of his inability to walk without using environmental supports to balance himself, his need to stop and rest because of pain and fatigue after walking short distances of up to 100 metres, and his risk of falling over when walking. Mr Todd’s inability to mobilise by walking is considerable and walking is, in my opinion, a significant part of the activity of mobility. I consider that the matters affecting Mr Todd’s inability to walk together with his inability to use his limbs to perform many of the tasks of daily living as well his inability to do tasks and actions involving the use of his hands such as cutting up vegetables and pouring and drinking from a glass because of his essential tremor means that his functional capacity in the activity of mobility is significantly or greatly reduced such that his functional capacity in the activity of mobility is substantially reduced.
THE ACTIVITY OF SELF CARE
This part of the access criteria involves consideration of the second issue that I referred to earlier, namely whether Mr Todd’s permanent impairments result in substantially reduced functional capacity to undertake, in undertaking the activity of self-care.
Mr Todd’s case was that his impairments ‘cause problems with strength, pain, limitations in repetitive movement and instability that substantially reduce his functional capacity to safely complete the tasks required for him to care for himself and maintain a safe and healthy home environment’. Further, so far as r.5.8(a) and (b) are concerned his case was that his impairments result in him being unable to participate effectively or completely in the tasks of self-care, including cooking and eating and keeping a safe home environment without assistive technology and that he usually requires assistance to perform tasks or actions required to participate in the activity of self-care.
I have already dealt with several of those matters in dealing with mobility and Mr Todd’s inability to use his limbs in performing tasks involving his limbs.
Like with the issue concerning mobility, the evidence was mainly that of Mr Todd and of Ms Pordage, although Dr Prasad, based on what Mr Todd had told him, expressed the opinion that Mr Todd requires assistance with the activities of daily living. The Agency referred to Dr Jain’s report attached to the access request form that said that Mr Todd did not need assistance with self-care.
Ms Pordage again addressed the question of Mr Todd’s capacity to engage in the activity of self-care in her first report. In her first report Ms Pordage answered the questions found in Annexure A to the letter of instructions:
Is Mr Todd able to manage his own self care? If not, why not?
with the words:
Mr Todd was dressed appropriately for the appointment. He stated that he can toilet, dress and shower himself.
He struggles with cutting his nails, especially his toenails. It causes pain in his back and neck. Scars were observed from where he makes mistakes due to the tremors in his hands.
The next question and answer was:
What type, level and frequency of assistance (if any) does Mr Todd need to support him to effectively manage self-care tasks? What does this support involve (If aids/devices are used, please specify).
Mr Todd will need physical assistance with podiatry tasks. The level of assistance required is very high with the frequency being approximately once a month.
It is reasonable to conclude that Ms Pordage expressed this opinion based upon what she saw of Mr Todd’s essential tremor and his inability to undertake tasks that involve bending without pain. I accept her evidence about the matter.
The other aspect of self-care that Ms Pordage expressly addressed in her report under the heading of self-care concerned Mr Todd’s inability to drink from a full glass without spilling its contents, namely his need to drink from the full glass over the sink before being able to drink without spilling any because of his essential tremor. In her second report Ms Pordage referred to Mr Todd’s inability to cut things up with a knife to prepare a meal which I have dealt with earlier which are both consequences of his severe essential tremor.
Ms Pordage also expressed the opinion that Mr Todd was able to do many routine activities or tasks involved in self-care: toilet and wash himself, shower (although she considered he needed assistance to transfer in and out of the bathtub safely), get a glass of water and drink it (so long as it was not full), dress himself, take his own medication, and make simple meals like sandwiches and shakes. Again, much of her evidence about these things was not based on her own observations but it was consistent with much of Mr Todd’s own evidence that he was able to toilet, dress, shower, prepare basic food items that did not require cutting or use of the cook top such as toast, boil eggs and make shakes, do many domestic chores such as taking small bags of garbage to the garbage bin, stacking and unstacking the dishwasher, using the clothes dryer, using the washing machine, undertaking some household cleaning such as washing the basin and pouring toilet cleaner into the toilet, undertake the shopping for grocery products (subject to the limitation I referred to earlier) and making appointments and other arrangements by phone or by using his laptop. Mr Todd’s evidence was that he could drink from a glass so long as it was only half full.

In the absence of r.5.8 I would not be satisfied that the things Mr Todd cannot do in the activity of self-care demonstrate a substantially reduced functional capacity: the very many things that Mr Todd is able to do in the activity of self-care to which I have referred demonstrate that whilst he has reduced functional capacity in the activity, the reduction is not substantial. Mr Todd is able to undertake the vast majority of tasks that concern his ‘personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health needs’.
I consider that r.5.8(a) is engaged because Mr Todd is unable to perform tasks or actions namely cooking, drinking and boiling water required to undertake or participate effectively or completely in the activity of self-care without assistive technology or equipment such as a specialist disability trolley, an anti-tipping and slipping cup, and a tippy kettle. This is consistent with the finding I have already made in relation to the same tasks so far as they concern the activity of mobility.
I also consider that r.5.8(b) is engaged because of the tasks in the activity of self-care that Mr Todd is unable to do for which he will usually require assistance from other people to perform in order to undertake or participate in the activity of self-care, namely washing his hair and cutting his fingernails and toenails.
The operation of r.5.8(a) and r.5.8(b) as deeming provisions mean that I must consider Mr Todd to have a substantially reduced functional capacity to undertake the activity of self-care, which satisfies the criteria in s.24(1)(c).
LIFETIME SUPPORT OF THE NDIS
I have found that Mr Todd has permanent impairments that result in him having substantially reduced functional capacity in the activity of mobility and that so far as the activity of mobility is concerned, he will need to be assisted by another person to undertake activities that involve walking and in tasks involving the use of his limbs such as ironing, aspects cooking, drinking, vacuuming, and gardening including mowing his lawn. I have also found that Mr Todd usually requires assistance from other people to perform tasks or actions, being washing his hair and cutting his toenails and fingernails required to undertake or participate in the activity of self-care.
Mr Todd has and is accessing the health system and utilizing the support it gives him. This is evident from his chronic pain disease management plans. The support that Mr Todd needs, in particular by way of assistance with tasks that involve walking, domestic tasks, cutting his finger and toenails and washing his hair, are unlikely to be available from the health system. I am satisfied that it is likely that Mr Todd will require the assistance of the NDIS for his lifetime.
CONCLUSION
I have concluded that r.5.8(a) and (b) are satisfied and that Mr Todd has substantially reduced functional capacity in the activities of mobility and of self-care. I am satisfied that Mr Todd is likely to require the support under the NDIS for his lifetime. It follows that I am satisfied that Mr Todd meets the access requirements in s.24(1) of the Act.
I set aside the delegate’s decision that Mr Todd does not meet the access criteria to become a participant in the NDIS and substitute a decision that Mr Todd meets the access criteria to become a participant in the NDIS.

I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

..........................[SGD]..............................................
Associate
Dated: 21 December 2022

Date(s) of hearing: 12 & 13 August 2021, 8 November 2021

Date final submissions received: 23 February 2022

Counsel for the Applicant: Ms A. Rao

Solicitors for the Applicant: LegalAid NSW

Counsel for the Respondent: Ms P. Bindon

Solicitors for the Respondent: MinterEllison

Date(s) of hearing:	12 & 13 August 2021, 8 November 2021
Date final submissions received:	23 February 2022
Counsel for the Applicant:	Ms A. Rao
Solicitors for the Applicant:	LegalAid NSW
Counsel for the Respondent:	Ms P. Bindon
Solicitors for the Respondent:	MinterEllison