Toltz and National Disability Insurance Agency
[2023] AATA 49
•27 January 2023
Toltz and National Disability Insurance Agency [2023] AATA 49 (27 January 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/1867
Re:Mr Alexander Toltz
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member D. Connolly
Date:27 January 2023
Place:Sydney
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).
....................................SGD....................................
Senior Member D. Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – bilateral keratoconus – whether impairment results in substantially reduced functional capacity – generalised anxiety disorder – whether impairment is permanent – factors to be taken into account when considering whether a person is likely to require support
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544National Disability Insurance Agency v Davis [2022] FCA 1002
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities, New York on 13 December 2006 ([2008] ATS 12)
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISIONSenior Member D. Connolly
27 January 2023
BACKGROUND TO REVIEW
The Applicant, aged 49, seeks review of a decision made by the National Disability Insurance Agency (the Respondent) which confirmed an earlier decision to refuse his request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Act 2013 (Cth) (the Act).
The Applicant lives with his wife and two children in a suburb of Sydney.[1] He is currently employed as an Employment Relations Specialist, but has previously worked as a solicitor.[2]
[1] Statement, filed by the Applicant on 25 June 2021, p 1.
[2] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 2.
The Applicant has bilateral keratoconus[3], a lifelong progressive condition.[4] The Applicant has explained in his statement that keratoconus is a degenerative condition that affects the cornea, often resulting in the need for a corneal transplant.[5] He had his first corneal transplant in 1989, his most recent transplant in April 2022, and had several other transplants in between.[6] While he has impaired vision, he does not meet the requirements to be classified as legally blind.[7]
[3] Letter from Ms Pelayia Bow, filed by the Applicant on 11 June 2021, states “[Keratoconus] is a progressive condition affecting the cornea which is the front surface of the eye. The cornea is normally round and clear. In keratoconus the cornea grows into a cone shape and becomes thin and scarred. This results in reduced visual detail (blur), significant image distortion and ghosting, haloes around light sources and significant glare sensitivity.”
[4] Letter from Dr Frank Martin, filed by the Applicant on 13 July 2020.
[5] Statement, filed by the Applicant on 25 June 2021, p 1.
[6] Statement of Facts and Lived Experience, filed by the Applicant on 24 October 2022, p 1.
[7] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, pp 9-10.
The Applicant has also provided psychological evidence that his presentation is consistent with generalised anxiety disorder, claustrophobia, panic disorder and an adjustment disorder in relation to his failing eyesight.[8]
[8] Letter from Ms Amanda Elliott, filed by the Applicant on 11 June 2021, p 2.
In December 2019, the Applicant made a request to become a participant in the NDIS, based on his primary disability, keratoconus, and anxiety.[9] His GP, Dr Starlette Isaacs, reported that the Applicant required assistance in the self-management domain, namely magnifying devices, spectacle changes and psychological support, and that he has had corneal transplants.[10] She indicated that no assistance was required in relation to mobility, communication, social interaction, learning and self-care.[11]
[9] T3, pp 18-25.
[10] Ibid, pp 22-24.
[11] Ibid, pp 22-24.
On 9 December 2019, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied the Applicant’s impairments were permanent.
On 9 January 2020, the Applicant made a request that the decision be internally reviewed. On 10 March 2020 the internal reviewer found that, while the Applicant’s condition keratoconus is permanent, he had not demonstrated a substantially reduced functional capacity in any of the six domains set out in subparagraphs 24(1)(c)(i) to (vi) of the Act, as required to meet the disability requirements. Nor was the delegate satisfied that the Applicant was likely to require lifetime support of the NDIS as required by paragraph 24(1)(e), or that the NDIS is the most appropriate support system for the Applicant, as required by the subsection 25(3) of the Act to meet the early intervention requirements.
On 26 March 2020 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
The Applicant requested that his review application be decided ‘on the papers’ during a Case Conference on 4 August 2022. He did not wish to participate in an oral hearing and was of the view there was sufficient evidence before the Tribunal for a decision to be made. In considering the Applicant’s request, some weight was given to the fact that the Applicant is a lawyer, with knowledge of what a decision 'on the papers’ may involve.
The Tribunal may only determine a review application ‘on the papers’ with the consent of all parties to the review application. The Respondent provided its consent to this approach on 22 August 2022. The exchange of submissions and any further evidence was timetabled to be provided by November 2022, with the Tribunal to consider the application on the papers in December 2022.
I have had regard to the recent case of National Disability Insurance Agency v Davis [2022] FCA 1002 in considering whether the parties have had a fair opportunity to provide evidence and make submissions on the relevant issues and factors in this case. I am satisfied that I am not considering issues beyond those considered by the parties. All the material before me was made available to the parties before their final written submissions. The Respondent was given a further opportunity to address the Applicant’s final statement of facts and lived experience. I am satisfied the parties have had a fair opportunity to consider all the relevant material and the issues raised in this case.
I have decided that this matter is an appropriate one to determine ‘on the papers’, without the parties participating in an oral hearing. In doing so I have taken into consideration all the material before me, including letters and reports from medical and allied health specialists and the parties’ written submissions.
LEGISLATION
The NDIS was established under the Act. Its objectives, set out in section 3, include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities[12] and facilitating the development of a nationally consistent approach to the access to supports for people with disability. The general principles guiding actions under the Act are set out in section 4 and include affirming that people with disability should have certainty that they will receive the care and support they need over their lifetime.[13]
[12] New York on 13 December 2006 ([2008] ATS 12).
[13] National Disability Insurance Act 2013 (Cth) s 4(3).
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1)A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
There is no dispute the Applicant satisfies the age requirements in section 22 and the residence requirements in section 23 of the Act. The issue for the Tribunal to decide is whether the Applicant satisfies the access criteria in either section 24 of the Act (the disability requirements) or section 25 of the Act (the early intervention requirements).
Section 24 of the Act states:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self care;
(vi)self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the Act sets out the early intervention requirements. For the reasons given below with respect to the Applicant meeting the disability requirements it was not necessary for me to consider these provisions.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the AccessRules), which form part of the legislation. Rules 5.4, 5.5 and 5.8 are relevant and set out in my consideration of the evidence.
The Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[14] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[15]
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
[15] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>
The Respondent accepts, and based on medical evidence discussed below I agree, that the Applicant has a disability that is attributable to a sensory (vision) impairment arising from bilateral keratoconus.[16]
[16] T2, p 15.
The Respondent also accepts, and I agree, that the Applicant’s vision impairment is permanent.[17] Accordingly paragraph 24(1)(b) of the Act is met.
[17] Ibid.
However the Applicant has provided psychological evidence confirming he presents with symptoms consistent with a generalised anxiety disorder, claustrophobia, panic disorder and an adjustment disorder in relation to his failing eyesight. The Respondent does not accept the available evidence demonstrates that any impairment arising from these conditions is permanent, for the purposes of paragraph 24(1)(b) of the Act. While this paragraph is already met, for completeness, I will consider whether I am satisfied any impairment arising from these conditions is, or is likely to be, permanent.
The Applicant has provided evidence about the impact of his impairments on his functional capacity. The Respondent is not satisfied the Applicant has a substantially reduced functional capacity in any of the six domains set out in paragraph 24(1)(c) of the Act. Accordingly I will consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care or self-management.
CLAIMS AND EVIDENCE
Evidence before the Tribunal
The documents before me are as follows:
(a)the ‘T-Documents’ provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by the Applicant to the Respondent;
(b)the Applicant’s material as follows:
(i)Statement, dated 25 June 2021
(ii)Statement, dated 15 December 2021
(iii)Statement of Facts and Lived Experience, dated 24 October 2022
(iv)Letter from Dr Frank Martin, Clinical Professor (Paediatrics and Child Health and Ophthalmology), dated 6 July 2020
(v)Letter from Ms Jenni Collins, Registered Nurse, dated 1 October 2020
(vi)Letter from Dr Gerard Sutton, Ophthalmic Surgeon and Professor of Corneal and Refractive Surgery, University of Sydney, dated 26 November 2020
(vii)Letter from Professor Colin Chan, Ophthalmic Surgeon, dated 21 December 2020
(viii)Letter from Ms Amanda Elliott, Clinical Psychologist, dated 9 June 2021
(ix)Letter from Ms Pelayia Bow, Low Vision Optometrist, dated 11 June 2021
(x)Referral from Dr Frank Martin, Clinical Professor, dated 24 May 2021
(xi)Reason for the Referral from Dr Frank Martin, Clinical Professor, dated 14 June 2021
(xii)Medical Certificate from Dr Gerard Sutton, Ophthalmic Surgeon, Regarding the Applicant’s Unfitness Between 27 September 2021 and 4 October 2021, dated 27 September 2021
(xiii)Letter from Dr Frank Martin, Clinical Professor, dated 28 September 2021
(xiv)Response from Dr Frank Martin, Clinical Professor, to Questions from the NDIA Questions, dated 29 November 2021; and
(c)the Respondent’s material as follows:
(i)Statement of Facts, Issues and Contentions, dated 30 September 2022
(ii)Report from Dr Michael Delaney, Ophthalmic Surgeon, dated 7 October 2021
(iii)Briefing Letter for Mr Glen Dwyer, Occupational Therapist, dated 24 May 2022
(iv)Functional Capacity Assessment from Ms Melissa Sale, Occupational Therapist, dated 27 June 2022
(v)Respondent’s Reply to the Applicant’s Statement of Facts and Lived Experience, undated, filed on 11 November 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
Vision Impairment
On the basis of the letter from Dr Frank Martin, Clinical Professor (Paediatrics and Child Health and Ophthalmology), dated 6 July 2020[18] I accept that the Applicant suffers from bilateral keratoconus, a lifelong progressive condition for which he has undergone several corneal transplants in both eyes. He will require lifelong medical and technical support due to the progressive changes in his corneas.
[18] Letter from Dr Frank Martin, filed by the Applicant on 13 July 2020.
Dr Michael Delaney, Ophthalmic Surgeon, prepared an independent report for the Respondent in which he recorded that the impairment resulting from the Applicant’s condition is poor quality and quantity of vision, which has fluctuated with multiple treatments.[19] Dr Delaney recorded that the Applicant has suffered corneal graft failures and his fluctuating poor vision has caused him “considerable difficulty compared to the average patient who has reasonably stable vision once they have had keratoconus surgery if the operation has gone well and is without complications such as rejection of the transplant.”[20]
[19] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 7.
[20] Ibid, p 3.
Dr Delaney opined that the Applicant’s “symptoms due to his keratoconus are very well documented in the enclosures, in particular in [the Applicant’s statement to the Tribunal]. This document sets out in detail and accurately describes the various problems that he has encountered due to his poor vision and the need for multiple operations.”[21]
[21] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 3.
Dr Delaney concluded that the Applicant’s condition will persist for life and while he has corneal transplants and other medical treatment, these “will not and cannot provide a remedy or cure”[22]. He confirmed his impairment may fluctuate and he may need to undergo further grafts. He concluded that the Applicant’s condition is stable but with ongoing loss of vision. He concluded the Applicant’s impairments “have resulted in substantially reduced functional capacity to undertake all of the activities of communication, social interaction, learning, mobility, self care and self management.”[23]
[22] Ibid, p 4.
[23] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 5.
The Applicant has recorded in his personal statement that throughout the year his prescription spectacles are changed several times because his eyesight is not consistent or stable.[24] This is supported by the letter from Ms Pelayia Bow, Low Vision Optometrist, Vision Australia dated 11 June 2021[25], in which she reports that the Applicant’s keratoconus is a severe case requiring corneal transplants with a history of rejection requiring continual treatment. She reports that the Applicant’s vision fluctuates with changes in his cornea and he therefore requires “extreme spectacle prescription changes on a regular basis”[26]. Even with prescription glasses he does not achieve sharp visual clarity. She reported that he requires updated spectacles approximately every three months which is significantly more frequently than his peers.
[24] T6, p 29.
[25] Letter from Ms Pelayia Bow, filed by the Applicant on 11 June 2021.
[26] Ibid.
In her Functional Capacity Assessment, Ms Melissa Sale, Occupational Therapist, records that the Applicant’s visual acuity is checked regularly and he is required to update his spectacle prescription every three months.[27] This includes reading glasses, everyday glasses and sunglasses which he always wears when outdoors because he has difficulties with glare and bright lighting.[28]
[27] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 10.
[28] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 18.
While not disputed by the Respondent, I am satisfied the Applicant has a disability that is attributable to a sensory (vision) impairment, arising from bilateral keratoconus. Accordingly paragraph 24(1)(a) is met.
I am also satisfied that the Applicant’s vision impairment is permanent. Accordingly paragraph 24(1)(b) is met.
Anxiety
Is the Applicant’s anxiety permanent, or likely to be permanent?
On 16 December 2019, the Applicant’s GP, Dr Starlette Isaacs, recorded that anxiety is another disability that impacts on the Applicant’s daily life.[29] She indicated that psychological support is likely to remedy the impairment and that he requires this type of assistance.[30]
[29] T3, pp 22-24.
[30] Ibid.
In his personal statement, dated 19 February 2020, the Applicant stated he suffers from serious anxiety for which he has sought psychological assistance.[31] He repeated this in his statement dated 25 June 2021, explaining that his vision impairment not only adversely affects his everyday life but also causes him serious anxiety and related concerns such as panic disorder and claustrophobia. He stated that, as a result of corneal transplants failing and the requirement for further surgical intervention, he has developed serious anxieties. He has sought, over several years, professional psychological assistance “in order for me not to be overwhelmed by fear of what is in store for me either through more surgery and the generalized anxiety I have as a result of my visual disability.”[32] He stated the anxiety he suffers is impacted by the stress and complications that he endures as the result of the corneal transplant surgeries and subsequent treatment plans. He repeated similar claims in his subsequent statements, including as recently as 24 October 2022.[33]
[31] T6, p 29.
[32] Statement, filed by the Applicant on 25 June 2021, p 2.
[33] Statements, filed by the Applicant on 25 June 2021, 15 December 2021, and 24 October 2022.
On 1 October 2020, Ms Jenni Collins, Credentialed Mental Health Nurse, reported that the Applicant was referred to a Mental Wellness Program in July 2019 by his private health insurer as he was demonstrating very high psychological distress.[34] She advised that he had participated in 18 telephone counselling sessions with her, which was completed in July 2020. While his psychological distress was reduced, he was referred for a further six sessions. She noted that his mental state had deteriorated in the previous two months due to an exacerbation of his vision impairment. His health fund only provided a maximum of 18 sessions and advised he would need to find another source of support.
[34] Letter from Ms Jenni Collins, filed by the Applicant on 1 October 2020.
Ms Collins advised that the Applicant had been diagnosed with generalised anxiety disorder exacerbated by his vision impairment. During his sessions he spoke about the impact of his disability on the quality of his life, and that it increased his anxiety, in relation to fear of rejection of corneal transplants, fear of losing his vision totally, as well as the impact this has on his career and family commitments. Ms Collins was of the view the Applicant would require regular psychological support to help him deal with his disability related to his vision impairment as it exacerbates the anxiety he experiences. She noted that, while he responded well to the sessions, she was of the view he requires ongoing support.
The Applicant’s psychologist, Ms Amanda Elliott, provided a letter dated 9 June 2021 in which she advised that the Applicant had commenced individual therapy sessions in March 2021.[35] The Applicant had reported to her that he experienced significant anxiety about his day-to-day functioning and his future ability to function and work, due to his deteriorating eyesight. He had commenced a new position in 2020 but because he experienced corneal transplant rejection he felt unable to continue in that position due to his increased anxiety. Ms Elliott advised that during his therapy sessions the Applicant discussed the challenges his eyesight problems cause in his life due to his inability to drive and reliance on family members. These challenges have significantly impaired his confidence and interact with his “death anxiety”[36] which results in daily experiences of anxiety attacks and panic. A major stressor and trigger for his anxiety is concern about his ability to function and work given his vision impairment. He reported to Ms Elliott that his struggles with this had increased in severity in the previous 12 months. In her view his presentation was consistent with generalised anxiety disorder, claustrophobia, panic disorder and an adjustment disorder in relation to his failing eyesight.
[35] Letter from Ms Amanda Elliott, filed by the Applicant on 11 June 2021, p1.
[36] Letter from Ms Amanda Elliott, filed by the Applicant on 11 June 2021, p1.
Ms Pelayia Bow, Low Vision Optometrist, reported on 11 June 2021 that the Applicant had reported to her that he was receiving mental health care for anxiety related to his vision loss.[37]
[37] Letter from Ms Pelayia Bow, filed by the Applicant on 11 June 2021.
Ms Melissa Sale, Occupational Therapist, undertook an independent Functional Capacity Assessment for the Respondent and on 27 June 2022 reported that the Applicant has a history of generalised anxiety disorder, with no definitive prognosis.[38] She accepted that he has anxiety regarding his visual function (and potential loss thereof) and an inability to independently use a lift due to anxiety and claustrophobia.[39] She accepted Ms Elliott’s view that he has a generalised anxiety disorder, claustrophobia, panic disorder and an adjustment disorder in relation to his failing eyesight. She noted he experiences fear of corneal rejection and total loss of sight, fear about his deteriorating eyesight, panic attacks, heightened anxiety, impaired confidence, claustrophobia and emotional deregulation.[40] She noted that at the time of her assessment he was consulting a psychologist every few weeks, taking antidepressant medication Lexapro, and practising techniques to help him manage his anxiety.[41] She accepted the Applicant experiences claustrophobia when using lifts and is dependent on a support person to be by his side for the purpose. For example, when attending his eye doctor, which is located on the second floor, he calls ahead and arranges for someone from reception to meet him and chaperone him to the lift. If a support person is not available, he needs to use the stairs.[42]
[38] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 4.
[39] Ibid, p 5.
[40] Ibid, p 8.
[41] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 10.
[42] Ibid, p 19.
I am satisfied the Applicant’s keratoconus, and the associated vision impairment, is a lifelong condition and progressive in nature.[43] Having regard to the evidence pertaining to the Applicant’s anxiety disorder, claustrophobia and panic disorder, I am satisfied these conditions are directly related to his keratoconus and vision impairment, his fears about failing eyesight and the impact this will have on his career and family commitments.
[43] Letter from Ms Pelayia Bow, filed by the Applicant on 11 June 2021.
In determining whether the Applicant’s impairment associated with anxiety is permanent or likely to be permanent, I have considered rules 5.4 and 5.5 which state as follows:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
I accept that the Applicant has undertaken psychological therapy with Ms Elliott since March 2021, demonstrating there are available and appropriate treatments. However I note that the Applicant has suffered from these conditions since at least 2019 when he was referred to the Mental Wellness Program with very high psychological distress. I am of the view that, while psychological therapy may assist the Applicant to cope with the anxiety, challenges, fears and distress associated with his vision impairment, I am not satisfied such treatment is likely to remedy this impairment because those challenges will be lifelong.
I accept that the Applicant’s anxiety disorder may fluctuate in its severity over time and there may be times when the Applicant does not require psychological support. However given his anxiety, claustrophobia and panic disorder are directly related to his keratoconus and vision impairment, a lifelong condition that is stable but with ongoing loss of vision, I am satisfied his anxiety disorder is a permanent impairment.
The Applicant’s claim to have suffered a heart attack
I note the Applicant has stated that he recently suffered a heart attack and he is now consulting a cardiologist.[44] He has not provided medical evidence to support this claim. Nor has he indicated this condition has resulted in a disability that is attributable to an impairment, or that it has caused an impairment that is, or is likely to be, permanent. Accordingly I have not given this claim any weight.
[44] Statement of Facts and Lived Experience, filed by the Applicant on 24 October 2022, p 3.
Do the Applicant’s impairments result in substantially reduced functional capacity?
The Tribunal must consider whether the impairments result in substantially reduced functional capacity to undertake one or more specified activities. This requires a detailed assessment of the effects of each permanent impairment on the person’s functional capacity. Each of the activities set out in paragraph 24(1)(c) must be considered in detail.
Rule 5.8 sets out the matters that I must consider when determining whether the Applicant’s impairments result in substantially reduced functional capacity and states as follows:
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.
The Operational Guideline states that an impairment:
substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the [following] tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.[45]
[45] P 9.
In assessing whether the Applicant’s impairments result in substantially reduced functional capacity I have taken into account the explanation provided in Mulligan v National Disability Insurance Agency, that “the legislative scheme contemplates a relatively high degree of precision by decision-makers ... a functional, practical assessment of what a person can and cannot do.”[46]
[46] [2015] FCA 544 at [55]-[56].
In considering the weight I can give to the Applicant’s statements I have taken into account Dr Delaney’s view:
I believe that Mr Toltz' clinical findings match the history given, both orally to me and in the documents noted above. The clinical reasoning behind this statement is that his physical findings with multiple corneal transplants, which have undergone rejection at various times to varying levels, have affected his quality of vision in a way that cannot be objectively documented. The clinical examination by an ophthalmologist provides for an objective measurement of the reduced vision, but it cannot measure the quality of vision, which has been substantially impaired by Mr Toltz' keratoconus requiring corneal grafts. These corneal grafts have undergone multiple failures due to corneal rejection and other inherent risks of the procedures. There is no specific one functional or otherwise limitation that can be documented, but it is the overall effects on his vision which are genuine and are set out in the documents noted above [including the Applicant’s various statements].[47]
[47] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 6.
Accordingly, I am satisfied the contents of the Applicant’s statement are reliable and credible.
I note Dr Delaney’s view that the Applicant’s “impairments have resulted in substantially reduced functional capacity to undertake all of the activities of communication, social interaction, learning, mobility, self care and self management.”[48] I will however undertake a detailed assessment of the effects of each permanent impairment on the Applicant’s functional capacity.
[48] Ibid, p 5.
Communication and learning
The Respondent has considered the Applicant’s use of low vision assistive technologies and aids in his communication and learning, namely prescription glasses, computer software (JAWS, ZoomText, Dragon, DaVinci Pro[49]), magnifying glasses and larger computer monitors.[50] For convenience I will do the same.
[49] JAWS is a screen reading software tailored for blind or low vision users. It helps users to read aloud what they are unable to see on their screen through text-to-speech technology < Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 10.
The Operational Guideline notes that the following is considered with respect to communication:
how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.[51]
[51] P 8.
The Operational Guideline notes that the following is considered with respect to learning:
how you learn, understand and remember new things, and practise and use new skills.[52]
[52] P 9.
Rule 5.8 requires me to consider whether the Applicant is unable to participate effectively or completely in the activities of communication and learning, or to perform tasks or actions required to undertake or participate effectively or completely in the activities, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or whether he usually requires assistance from other people to participate in the activities or to perform tasks or actions required to undertake or participate in the activities.
In his statement dated 25 June 2021 the Applicant stated his visual disability does not overly affect his ability to communicate, as technology allows him to continue with this activity. He uses voice activated software, a magnifying program and a large computer monitor. In her Functional Capacity Assessment, Ms Sale formed the view the Applicant is independent in this domain, however, as noted, he relies on low vision assistive technologies and aids.[53] She also reported that, to maintain his independence, the Applicant requires continued support in the prescription of assistive technologies suitable for his low vision needs and this is critical given the progressive and fluctuating nature of his keratoconus.[54] Relevant to these activities she listed the functional incapacities of fluctuating vision, lack of peripheral vision, increased susceptibility to eye strain, difficulty with visual detail and difficulty with bright lights and glare.[55]
[53] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 5.
[54] Ibid.
[55] Ibid, pp 4-5.
The Applicant relies on prescription glasses to communicate and learn. Having regard to whether his vision impairment results in his being unable to participate effectively or completely in these activities, or to perform tasks or actions required to undertake or participate effectively or completely in these activities, without assistive technology or equipment, I note rule 5.8 excludes commonly used items such as glasses. However I note that he needs to have his glasses (reading, everyday glasses and sunglasses) updated regularly, as often as every three months, because of the progressive changes in his corneas. This is not a common requirement. I also note Ms Bow’s evidence that even with prescription glasses, the Applicant does not achieve sharp visual clarity.[56]
[56] Letter from Ms Pelayia Bow, filed by the Applicant on 11 June 2021.
Regarding the other assistive technologies the Applicant relies on, I note from Ms Sale’s report that Vision Australia are actively involved with advising and providing for the Applicant’s assistive technology needs.[57] Having regard to whether these assistive technologies are commonly used, I agree with the Respondent’s view that a large monitor is common in workplaces throughout Australia.[58] Regarding other assistive technologies used by the Applicant I note Ms Sale reports that the Applicant relies on active support from Vision Australia to install the DaVinci Pro, a desktop magnifier, and JAWS and ZoomText Magnifier & Reader, screen reading software. The Respondent has commented that magnification and dictation software are likely to be widely and frequently used by persons with vision impairment, and therefore, relying on the Tribunal’s view in Rooney and National Disability Insurance Agency (‘Rooney’)[59], are commonly used items.[60] I am not satisfied that the likelihood that such assistive technology - magnification, screen reading and dictation technology - may be commonly used by persons with vision impairment necessarily means it should be considered a commonly used item. Nor am I satisfied on the evidence before me that it is likely all people with vision impairment use these items, given vision impairment results in a broad range of reduced functional capacity, from those who merely rely on glasses to those who are legally blind.
[57] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 5.
[58] Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 11.
[59] [2021] AATA 3523 at [22]-[28].
[60] Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 11.
The Respondent has referred to the Tribunal’s other indicia of commonly used items, as set out in Rooney: it is generally accessible; can be used without the need for complex or specialised customisation or installation; is relatively simple to use; and is relatively inexpensive.[61] I am not limited to considering those matters. I note from Ms Sale’s report that the Applicant relies on Vision Australia to assess and provide suitable assistive technology. I am not satisfied this is indicative of a commonly used item. I am not satisfied that the DaVinci Pro and JAWS and ZoomText Magnifier & Reader are commonly used items.
[61] Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 11.
Considered overall, given the Applicant’s reliance on the DaVinci Pro, JAWS and ZoomText Magnifier & Reader to work and read, I am of the view he is unable to participate effectively or completely in communicating and learning, or to perform tasks or actions required to undertake or participate effectively or completely in communicating and learning, without assistive technology. Accordingly, I am satisfied the Applicant’s vision impairment results in substantially reduced functional capacity to undertake communication and learning.
With regard to the Applicant’s anxiety, I note Ms Elliot’s evidence that he left employment in 2020 due to his increased anxiety associated with corneal transplant rejection.[62] However since then he has secured suitable employment and there is no current evidence to indicate his anxiety is impacting in any significant way on his capacity to communicate and learn. On the evidence before me, I am not satisfied the Applicant’s anxiety results in substantially reduced functional capacity to undertake communication and learning.
[62] Letter from Ms Amanda Elliott, filed by the Applicant on 11 June 2021, p 1.
Social interaction
The Operational Guideline notes that the following is considered with respect to social interaction:
how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.[63]
[63] P 9.
With respect to this activity the Applicant has stated that he is limited in the types of social interactions he can safely engage in, due to the risk of eye infection or an accident.[64] He cannot, for example, enjoy ball sports. He indicated there is some heightened anxiety and fear in relation to this activity.[65] I note however from Ms Sale’s report that the Applicant simply avoids such activities when socialising with friends. The Applicant told Ms Sale that he has a good network of friends with whom he socialises regularly, and that they understand his needs and visual limitations.[66] He meets with friends by using Uber or arranging to be picked up and dropped home. While I accept the Applicant must make some adjustments, such as avoiding venues requiring stair access, I am not satisfied he is unable to make and keep friends or interact with the community. I am not satisfied the evidence before me suggests the Applicant’s vision impairment or anxiety have resulted in substantially reduced functional capacity with respect to social interaction.
[64] Statement of Facts and Lived Experience, filed by the Applicant on 24 October 2022, p 3.
[65] Ibid.
[66] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 16.
Mobility
The Operational Guideline notes that the following is considered with respect to this activity:
how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.[67]
[67] P 9.
I have considered the provisions of rule 5.8 with respect to this activity.
I have taken into account the Respondent’s submissions that simply because a person cannot undertake all tasks and actions that might fall within the activity of mobility does not mean the person has a substantially reduced functional capacity.[68]
[68] Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 6.
With respect to this activity the Applicant has stated that he has never driven a vehicle and is reliant on others to drive him.[69] He can use public transport however, more often than not, he relies on friends and family to drive him nearly everywhere he needs to go.[70] He explained that this has caused significant strain on his personal relationships and further impacted his ability to pursue employment opportunities that otherwise would be available to him.[71] Ms Sale reported that, if he is familiar with the destination, he can use public transport but has difficulties viewing bus numbers and reading bus or train timetables at the station or bus stop.[72] To accommodate this, he plans his journey ahead using Trip Planner on his iPhone.[73] He avoids frequent bus or train changes if possible.[74]
[69] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 19.
[70] Ibid.
[71] Statement, filed by the Applicant on 25 June 2021, p 3.
[72] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 19.
[73] Ibid.
[74] Ibid.
Ms Sale reported that, on assessment, the Applicant:
mobilised unaided with a normal gait. His pace was normal. When moving between hallways and through narrow areas of his home, he was observed to place his hand out to touch/feel for surfaces to compensate for his lack of peripheral vision. He was able to negotiate the three internal concrete steps independently at assessment. He held wall surfaces to support himself given his impaired depth perception. He admitted to falling down the internal steps “all the time”. His most recent fall on these steps was the week prior to the assessment.[75]
[75] Ibid, p 17.
Ms Sale reported that the Applicant denied any difficulty in accessing cupboards, storage and shelving in his home and demonstrated that he is able to transfer between his bed and a chair and shower independently.[76]
[76] Ibid, p 18.
Ms Sale reported that, except for “flare-ups” [77] of his eye condition and/or when he is recovering from eye surgery, the Applicant is able to mobilise in the community. He walks his dog several times a day and walks his sons to school.[78] To compensate for his diminished depth perception and peripheral visual, he walks routes that are familiar to him and always wears his prescription sunglasses.[79] He reported to her feeling confident walking in his local community.[80] However in his latest statement he explained that recently he has been struggling with depth perception and has to be very careful when judging the gradient of the footpath and the curb, and has had several falls.[81]
[77] Ibid, p 18. Dr Delaney reported that the Applicant’s flare-ups are “totally variable and cannot be documented on average due to the effects of the drying of the eyes, haziness of the corneas, rejection reactions and inflammation in the eyes…”; Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 7.
[78] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 18.
[79] Ibid.
[80] Ibid.
[81] Statement of Facts and Lived Experience, filed by the Applicant on 24 October 2022, p 3.
Ms Sale also reported that when attending new venues or places, the Applicant is dependent on a support person or chaperone to complete the journey with him, so he can familiarise himself with the environment (the layout, lighting, access, etc.).[82] Presently, his family are providing this support.[83] Following this initial support he is then able to attend independently.[84]
[82] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 19.
[83] Ibid.
[84] Ibid.
I also accept Ms Sale’s report that the Applicant experiences claustrophobia when using lifts, which he needs to use for medical appointments.[85] He needs to be chaperoned when using lifts and if a support person is not available, he has to use the stairs, which he finds challenging.[86] For accessing essential services that are not accessible via public transport, the Applicant relies on Uber or a taxi.[87]
[85] Ibid.
[86] Ibid.
[87] Ibid.
I accept, for a large part of the day the Applicant can mobilise around his home, transfer independently and access cupboards for commonly used items. I accept he can walk for an hour, including outside his home in familiar areas. However I note he has been struggling of late and has had falls. I also note that in response to questions from the Respondent regarding the Applicant’s capacity to mobilise around his home without assistance, to get in and out of bed and a chair, and to walk more than 50 metres, Dr Martin stated as follows:
for the first 2 hours after waking, [the Applicant] is unable to perform any of the above without assistance, as his corneas are oedematous when he wakes and his vision is significantly impaired. His vision clears after the installation of hypertonic saline eye drops. The effect of the drops is not evident for 1-2 hours after they are instilled.
I have had the opportunity of examining Alexander prior to the instillation of the hypertonic saline eyedrops and I have recorded visual acuity of less than 6/60 in each eye which is regarded as legally blind.[88]
[88] Response from Dr Frank Martin to questions from the NDIA, filed by the Applicant on 14 December 2021.
I accept that the Applicant’s inability to, without assistance, move around his home, get in and out of bed and a chair, and to walk more than 50 metres, is temporary. However I am of the view the Applicant’s incapacity to do these things for up to two hours every morning indicates he is not able to participate in this activity effectively and completely because of his vision impairment. I also note the Applicant’s admission that he falls down steps within his own home, with which he is familiar.
Combining this with his need, because of his anxiety, to be chaperoned when using lifts for medical appointments, of which he has several, and going into new environments because of his vision impairment, I am satisfied the Applicant is often not able to participate effectively or completely in mobilising around his home and in the community, without assistance from other people. Accordingly I am satisfied the Applicant’s vision and anxiety impairments result in substantially reduced functional capacity to undertake mobility.
Self-care
The Operational Guideline notes that the following is considered with respect to this activity:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.[89]
[89] P 9.
I must consider whether the Applicant is unable to participate effectively or completely in self-care, or to perform tasks or actions required to undertake or participate effectively or completely in self-care, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications, or whether he usually requires assistance from other people to participate in self-care or to perform tasks or actions required to undertake or participate in self-care.
With respect to this activity the Applicant has stated that for the most part he manages his own self-care but needed several lessons in managing specialist contact lenses effectively.[90]
[90] Statement of Facts and Lived Experience, filed by the Applicant on 24 October 2022, p 4.
Ms Sale reported the following with respect to self-care.[91] In her opinion, it is not safe for the Applicant to attempt to cut his own nails as it would likely result in injury. He showers, toilets and dresses independently. He is independent with shaving using an electric razor; however, she observed that he had missed several areas of hair on his face and chin; which he indicated occurred frequently due to his impaired vision.
[91] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, pp 19-23.
Ms Sale noted the Applicant’s difficulties with depth perception affect his capacity to hang out laundry. She observed he missed and slipped forward but formed the view he could complete this task safely. She noted that while he can prepare a simple meal without difficulty, he avoids frying food where there is hot oil involved as there is a risk that hot oil or liquid may “spit up”[92] in his face. He avoids cooking tasks that involve a high degree of visual focus and detail. She noted his wife does most of the cooking for the family. While the Applicant can shop with his wife, to minimise the risk of intraocular pressure on his eyes, he carries lightweight bags or loads and his family carry heavier bags or loads. He avoids shopping when he has a ‘flare up’ of his condition. He can complete light cleaning duties within the home but he avoids various tasks due to the risk of dust getting into his eyes, and avoids cleaning with strong chemicals (e.g., bathroom/floors) due to the risk of exposure to his eyes, and subsequent infection and/or serious injury. His wife completes most of the household cleaning. He does not mow the lawn or utilise hedging equipment due to his impaired depth perception and image distortion. Ms Sale was of the view he would be unable to safely complete lawn mowing or yard care due to his visual impairment.
[92] Ibid, p 21.
The Respondent noted the Tribunal has held that “a substantially reduced functional capacity in self-care ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being’: Madelaine and National Disability Insurance Agency [2020] AATA 4025”[93]. It was also submitted that there is nothing in the evidence which suggests that the Applicant has “significant gaps”[94] in his capacity to maintain his health, safety and well-being, and nothing otherwise suggests that the Applicant has a substantially reduced functional capacity in his self-care.[95]
[93] Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 8.
[94] Ibid, p 9.
[95] Ibid.
With respect to this activity I have considered Dr Martin’s evidence that for the first two hours of the Applicant’s day he is effectively blind. However there is no evidence to suggest the Applicant needs assistance with toileting or hygiene during this period.
While Ms Sale observed that the Applicant misses areas during shaving, I am satisfied he showers, toilets, dresses and grooms himself independently. However he cannot cut his own nails. I accept that he can prepare simple meals but, on the basis of Ms Sale’s report, I am not satisfied the Applicant can safely cook using hot oils or liquids, or where visual focus and detail is important. I am of the view he cannot complete most cooking tasks effectively and completely without the assistance of others. While I accept the Applicant can go shopping with his family, I am not satisfied he can lift heavy bags or loads. I am not satisfied he can undertake most household cleaning tasks without the assistance of others because he cannot lift heavy loads, use strong cleaning chemicals or be exposed to dust. I agree with Ms Sale that the Applicant would be unable to safely complete lawn mowing or yard care due to his vision impairment. Considered overall, I am of the view Applicant is unable to participate effectively or completely in self-care, or to perform tasks or actions required to undertake or participate effectively or completely in self-care, without assistance from other people. I am satisfied the Applicant’s vision impairment results in substantially reduced functional capacity to undertake self-care.
I am not satisfied the Applicant’s anxiety results in substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline notes that the following is considered with respect to this activity:
how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[96]
[96] P 9.
The Applicant has stated that, for the most part, he is self-reliant in this activity but has had several discussions with his mental health treating provider as to how he could improve in this activity.[97]
[97] Statement of Facts and Lived Experience, filed by the Applicant on 24 October 2022, p 4.
Dr Isaacs indicated the Applicant requires assistance with self-management but appeared to be referring to the need to secure magnifying devices, spectacle changes and psychological support[98], which in my view are more relevant to other activities, communication, learning, mobility and self-care.
[98] T3, p 24.
Ms Sale reported that the Applicant is totally independent in this activity.[99] I note during the assessment by Ms Sale the Applicant denied having any difficulties with the relevant self-management tasks.[100] I am satisfied the Applicant participates effectively or completely in self-management, and performs the tasks or actions required to undertake or participate effectively or completely in self-management. I am not satisfied the Applicant’s impairments result in substantially reduced functional capacity to undertake self-management.
[99] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 6.
[100] Ibid, p 23.
Conclusion
Overall I am satisfied the Applicant’s impairments result in substantially reduced functional capacity to undertake activities set out in communication, learning, mobility and self-care and paragraph 24(1)(c) of the Act is met.
Do the Applicant’s impairments affect his capacity for social or economic participation?
The Applicant is currently employed as an Employment Relations Specialist with the Catholic Church and works from home.[101] This is made possible by the use of assistive technology including ZoomText, JAWS, Dragon and DaVinci Pro. I am satisfied that without the active support from Vision Australia to provide these programs the Applicant would not be able to participate in employment, because of the impact of his vision impairment.
[101] Functional Capacity Assessment from Ms Melissa Sale, filed by the Respondent on 1 July 2022, p 12.
I am also satisfied the Applicant’s impairments affect his capacity to socialise, to shop, to engage with the community and to consult his treating professionals.
The Respondent accepts that the Applicant meets paragraph 24(1)(d) of the Act. I am also satisfied the Applicant’s impairments affect his capacity for social and economic participation and so this requirement is met.
Is the Applicant likely to require support under the National Disability Insurance Scheme for his lifetime?
I must consider whether the Applicant is likely to require support under the NDIS for life under paragraph 24(1)(e). This consideration involves an assessment of the likely duration of his requirement for support under the NDIS, should he be granted access as a participant.
The Respondent’s submission on this requirement stems from its position that the Applicant has not established that he has a substantially reduced functional capacity.[102] For the reasons given above I disagree with that view.
[102] Statement of Facts, Issues and Contentions, filed by the Respondent on 29 July 2022, p 12.
The Respondent also submitted that, even if paragraph 24(1)(c) is met, any supports he requires are not the responsibility of the NDIS, arguing in part as follows:
Insofar as the Applicant uses software programs (discussed above), the day-to-day use of these appears to arise from the Applicant’s work as an employment relations specialist with the Catholic Church. He works at home from a home-office, using a computer. The Principles to Determine the Responsibility of the NDIS and Other Service Systems (Principles) provide (at p16-17) that workplace specific supports, including employment-specific aids and equipment, is the responsibility of the employer/workplace, not the NDIS (T151-152). Further, the Commonwealth Employment Assistance Fund is a Commonwealth scheme providing funding assistance to persons and employers to buy work related modifications, equipment and assistance…Further, it is apparent that the Applicant has available to him support from Vision Australia, including in relation to assessing his workplace and his use of aids such as the just mentioned software. See eg. Ms Sale’s report at pp10, 24-25.
In relation to the Applicant’s need for prescription glasses, rebates for the purchase of prescription glasses are the responsibility of State/Territory health services (see the Principles at p4, expressly referring to “prescription glasses” (T139) and funding is also available through private health insurance (which the Respondent understands the Applicant utilises).
Insofar as the Applicant is accessing a psychologist for management of his mental health, such access is available through a mental health care plan developed with his General Practitioner.
I disagree with this approach. I am not satisfied these are relevant considerations when considering whether a person meets the access requirements. These are factors that should be taken into account when considering the provisions relevant to reasonable and necessary supports. I am of the view the phrase “likely to require support” under the NDIS must be considered for the purposes of assessing whether a person meets the disability requirements for access to the NDIS as a participant. In doing this, it is not necessary or appropriate for me to assess the supports the Applicant may require under the NDIS. This assessment is only necessary if the Applicant is granted access.
The issue that I am required to consider with respect to paragraph 24(1)(e) of the Act is the likely duration of the Applicant’s requirement for support under the NDIS, should he be granted access and become a participant. If I am of the view he is not likely to require support under the NDIS for his lifetime, the requirement is not met.
The evidence of Dr Martin confirms that the Applicant’s disability will be lifelong and progressive, and that he will require lifelong technical support.[103] Dr Delaney also confirmed the Applicant’s condition is permanent and future transplants and treatment will not provide a remedy or cure for the vision impairment.[104] On the basis of these reports, I am satisfied the Applicant is likely to require support under the NDIS for his lifetime and paragraph 24(1)(e) of the Act is met.
[103] Letter from Dr Frank Martin, filed by the Applicant on 13 July 2020.
[104] Report from Dr Michael Delaney, filed by the Respondent on 12 October 2021, p 4.
CONCLUSION
There is no dispute that the Applicant meets the requirements of sections 22 and 23 of the Act.
For the reasons given above, I am satisfied that the Applicant meets the disability requirements set out in section 24 of the Act.
Accordingly, I find the Applicant meets the access criteria set out in section 21 of the Act.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. Connolly
.....................................SGD...................................
Associate
Dated: 27 January 2023
Date(s) of hearing on the papers: 12 December 2022 Solicitors for the Applicant: Ms T Huang, non-legal representative Solicitors for the Respondent: Ms M Gostylla
ZoomText Magnifier & Reader with screen reader is an advanced screen magnification program that enlarges and enhances everything on the computer screen <
Dragon is a speech recognition dictation software <
DaVinci Pro HD/OCR is a high-performance desktop video magnifier (CCTV), an aid for people with low vision <
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