Ward and National Disability Insurance Agency (NDIS)
[2025] ARTA 1368
•13 March 2025
Ward and National Disability Insurance Agency (NDIS) [2025] ARTA 1368 (13 March 2025)
Applicant/s: Mr Darryl Ward
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/5552
Tribunal:General Member Gooch
Place: Adelaide
Date:13 March 2025
Decision: The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
Statement made on 12 March 2025 at 9:48am
General Member Gooch
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – whether access criteria under s21 of the NDIS Act met – whether impairment permanent - extent of impairment – whether impairment affects social or economic participation – whether early intervention requirements met – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
National Disability Insurance Agency v Davis [2002] FCA 1002
Shi v Migration Agents Registration Authority (2008) 248 ALR 390
Albiol vNational Disability Insurance Agency [2024] AATA 496
Mulligan v NDIA 233 FCR 201
National Disability Insurance Agency v Foster [2023] FCAFC 11
Madelaine and National Disability Insurance Agency [2015] FCA 544
Reasons for Decision
1.This matter involves a review of a decision by the National Disability Insurance Agency (‘the Agency’) to reject an application by Mr Darryl Ward to join the National Disability Insurance Scheme. (‘the NDIS’).
2.Mr Ward is a 66-year-old man, living in his own home with his daughter and her family.
3.Mr Ward seeks access to the NDIS on the basis of physical impairments arising from Chronic Lumbar Spondylosis. Although he has other medical diagnoses, he only seeks access to the Scheme on the basis of his back condition.[1]
[1] A2
4.On 28 April 2023 Mr Ward applied to the Agency for access to the NDIS.[2]
[2] T8
5.Mr Ward’s application was refused by the Agency at first instance (decision dated 20 May 2023)[3] and again upon internal review (decision dated 4 July 2023)[4].
[3] T5
[4] T2
6.On 28 July 2023 Mr Ward applied to the Administrative Appeals Tribunal (‘the AAT’)[5] for review of the Agency’s internal review decision (‘the decision under review’).
[5] T1
7.From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
8.A hearing was held on 14 January 2025 and was conducted by MS Teams video conference.
9.At the hearing Mr Ward did not have legal representation. His daughter, Maddison Ward, made submissions on his behalf. The Agency was represented by Ms Battiste, of Counsel, instructed by Maddocks Lawyers.
10.Documents were accepted into evidence as follows:
a. Agreed Joint Tender Bundle (including T-Documents) – Exhibit 1;
b. Commonwealth Home Support Program (CHSP) document – Exhibit 2; and
c. CHSP Home Care Packages document – Exhibit 3.
11.For the reasons set out below, the Tribunal affirms the decision under review.
THE LEGISLATION RELEVANT TO THE APPLICATION
12.The statutory provisions relevant to this review are found in the Administrative Review Tribunal Act 2024 (‘the ART Act’), the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as amended), and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Section 209 of the NDIS Act in fulfilment of the permission in Section 27 of the NDIS Act.
13.The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines (‘the Access Guidelines’).
14.The NDIS Act does not provide legislative authority to the Operational Guidelines. The Tribunal is not bound to follow these Guidelines and will not do so where they are inconsistent with the NDIS Act. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) the Federal Court held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.
NDIS BACKGROUND
15.The NDIS scheme was modelled on recommendations made following a 2011 inquiry by the Productivity Commission into disability care and support in Australia.
16.The report produced by the Productivity Commission inquiry (‘the report’)[6] proposed an insurance-based scheme to provide support to people with a disability. A three-tier system was envisaged:
a. Tier 1 would provide cover for all Australians against the costs of support in the event they acquired a significant disability in their lifetime;
b. Tier 2 would provide general information, community engagement and referral services to local services; and
c. Tier 3 would provide funding for individualised supports tailored to specific needs for a limited group of people whose disability resulted in significantly reduced functional capacity (‘scheme participants’). This group was estimated to comprise about 410,000 people across Australia.
[6] Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011, 10-21
17.The report recommended one agency to oversee the scheme with responsibility for assessing and funding scheme participants and supports on the basis of an objective assessment using a common set of eligibility criteria and a common assessment process.
18.The report recognised that access to and use of the scheme would need to be managed carefully by the Agency in order to ensure the scheme’s financial sustainability. It was not intended that every person with a disability would be eligible to become a scheme participant.
19.In July 2013 the NDIS Act came into effect with the Agency created to manage the scheme.
20.The objects of the NDIS Act envisage a scheme which (among other things) gave effect to Australia’s obligations under a number of international Conventions, promoted choice and control for participants, supported the independence, social and economic participation of people with disability and provided ‘reasonable and necessary’ supports for participants to assist them with that participation.[7]
[7] Section 3 NDIS Act
21.Section 4 of the NDIS Act sets out the ‘general principles’ to be applied in administration of the Act. These principles reflect (among others) the rights of people with a disability to self-direction, choice, participation in social and economic life and to the maintenance of their privacy and dignity.[8]
[8] Section 4 NDIS Act
22.As both an objective and a principle (at paragraph 3(3)(b) and subsection 4(17)), it is noted that regard is to be had to the need to ensure the financial sustainability of the scheme.
23.More recently Parliament has chosen to pass the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act), which ends generally to a tightening in the way NDIS funding may be utilised.
24.Transitional provisions for the Amending Act provide that amendments for access applications apply only to applications made after 3 October 2024. The NDIS Act and Access Rules in place prior to the Amending Act apply to applications, such as Mr Ward’s, made before this date.[9]
[9] Section 126 of the Amending Act
ACCESS TO THE SCHEME
25.Part 1 of Chapter 3 of the NDIS Act deals with applications (such as Mr Ward’s) for access to the scheme. It includes a number of threshold criteria a person must meet in order to become a scheme participant.
26.Once a person makes an access application to the Agency, the NDIS Act provides the CEO (or their delegate) must decide whether the applicant meets the access criteria.[10]
[10] Sections 18 and 20 NDIS Act.
27.Section 21 of the NDIS Act provides that a person meets the access criteria if:
·The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application)[11];
·The person meets the residence requirements set out in section 23 (ie at the time of consideration, the person resides in Australia and, along with other options, is an Australian citizen)[12]; and
·The person meets the ‘disability requirements’, the ‘early intervention requirements’ or both.[13]
[11] Section 22 NDIS Act
[12] Section 23 NDIS Act
[13] Sections 24 and 25 (respectively) NDIS Act
The Disability Requirements
28. Amendments to access criteria made on 3 October 2024 only apply to applications made after that date. Consequently the relevant wording of Section 24 provided:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self‑care;
(vi)self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
28.The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.
The Early Intervention Requirements
29.Section 25 deals with access to the scheme on the basis of the ‘early intervention requirements’ as follows:
(1)A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme Access Rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
30.The Access Rules set out further matters to be considered in determining when an impairment might be permanent and in deciding the significance of any reduction in functional capacity. I will discuss those later.
THE DECISION UNDER REVIEW
31.The decision under review is a decision by the Agency to reject Mr Ward’s application to become a scheme participant.
32.In affirming its original decision on 4 July 2023 the Agency believed Mr Ward did not meet the age criteria in that (in their understanding) Mr Ward had been over 65 years of age at the time of application.[14] This decision arose from an administrative error by Mr Ward in originally submitting his application without signing it.[15] The determination was corrected on 3 October 2023, with an acknowledgement the age criteria was met.[16]
[14] T2
[15] A1 [6]
[16] A1 [13]
33.In their Statement of Facts, Issues and Contentions dated 12 October 2024 the Agency conceded that in their view Mr Ward:
· Met the age and residence criteria in sections 21(1)(a) and (b); [17]
· Had a disability attributable to physical impairments arising from Chronic Lumbar Spondylosis as required by section 24(1)(a);[18] and
· Met the requirement for permanency of the relevant physical impairments in that there were no known, available and appropriate evidence-based treatments which would remedy the impairments.[19]
[17] A1 [17]
[18] A1 [37]
[19] A1 [41] – referring to Rule 5.4 of the Access Rules
34.The Agency was not satisfied, however, that Mr Ward met all of the mandatory ‘disability requirements’ in section 24 of the NDIS Act because:
a. Mr Ward’s impairments did not result in a substantially reduced functional capacity in one or more of the six activity areas identified in the NDIS Act;[20] and
b. There were other appropriate community supports and services available from which Mr Ward could access the supports he required and as a result Mr Ward did not require support under the National Disability Insurance Scheme for his lifetime.[21]
[20] A1 [42] to [96]
[21] A1 [99] to [102]
35.The Agency was also not satisfied that Mr Ward met the ‘early intervention requirements’ in section 25 of the NDIS Act, as:
a. it appeared to them unlikely, given the nature of Mr Ward’s chronic lumbar spondylosis, that provision of services would reduce the need for future services, mitigate or alleviate the impact of the condition or prevent further deterioration in Mr Ward’s condition;[22] and
b. support for Mr Ward was more appropriately funded or provided through another service system, such as My Aged Care support.[23]
[22] A1 [103] to [113]
[23] A1 [114]
36.The Agency conceded that should the Tribunal find Mr Ward’s impairments were productive of substantial functional incapacity, the criterion in section 24(1)(d), (that the impairments affect the person’s capacity for social or economic participation) would be met.[24]
[24] A1 [97] – [98]
THE APPLICANT’S RESPONSE
37.In a document dated 18 November 2024[25] Mr Ward confirmed he sought access to the Scheme based on impairments arising from his Chronic Lumbar Spondylosis. He noted this was a degenerative condition of the spine which resulted in significant pain throughout his back, neck and head, along with muscle spasms. He noted nerve pain and significantly reduced range of motion and flexibility as a result.
[25] A2
38.In response to the Agency’s assertion Mr Ward did not have substantially reduced functional capacity as a result of his impairments, Mr Ward argued that while he may be able to complete some activities, such as shopping and preparing a meal, on some days, the impact of doing so was likely to leave him completely incapacitated afterwards. [26]
[26] A2
39.He argued that functional capacity should be assessed as a whole, not just by assessing his ability to complete individual tasks on one day. Mr Ward argued that the completion of a task which results in complete incapacity for the following days does not represent sustainable functional capacity.
THE TRIBUNAL’S JURISDICTION
40.Having regard to the decision under review, relevant sections of the NDIS Act (sections 99, 100 and 103) and Section 12 of the ART Act, I am satisfied the Tribunal has the appropriate jurisdiction to review this decision.
ISSUES
41.In conducting this review, the Tribunal stands in the shoes of the original decision maker to conduct its own independent assessment and determination. The Tribunal’s task is to reach the correct or preferable decision. It is not limited to considering only the evidence that was before the original decision maker and may give consideration to new material.[27]
[27] Shi v Migration Agents Registration Authority (2008) 248 ALR 390
42.The issue before the Tribunal in this matter remains whether Mr Ward meets the access criteria under either section 24 of the NDIS Act (the ‘disability requirements’) or under section 25 of the NDIS Act (‘the early intervention requirements’). This is a question of fact to be determined on the basis of evidence available to the Tribunal.
43.Given the Agency’s concessions as set out in their Statement of Facts, Issues and Contentions, it would be reasonable, in the circumstances, for the Tribunal to limit its considerations to those matters which remain in dispute.[28] For completeness, however, the Tribunal will satisfy itself of the conceded issues. The primary issues to determine, however, are:
a. Whether Mr Ward’s physical impairments arising from his Chronic Lumbar Spondylosis result in substantially reduced functional capacity to undertake any of the relevant activities identified in the NDIS Act[29];
b. Whether Mr Ward will require supports from the NDIS for his lifetime as a result of his Chronic Lumbar Spondylosis impairments; and/or
c. Whether Mr Ward meets the early intervention criteria in section 25 of the NDIS Act in that provision of supports will ameliorate his impairments, reduce his need for future supports and are appropriately provided by the NDIS.
[28] Section 53 ART Act
[29] Section 24(1)(c)
THE EVIDENCE
44.The Joint Tender Bundle provided to the Tribunal included:
a. a number of medical reports both specific to the application and which have been produced in the course of Mr Ward’s ordinary medical treatment. These include reports from Dr Nitchingham, Mr Ward’s long-term General Practitioner. Dr Nitchingham did not attend to give evidence;
b. a Functional Capacity Assessment report by Mr Christian Burden, Occupational Therapist, dated 4 December 2023. Mr Burden is a qualified occupational therapist with (at the time of assessment) 5 years professional experience. Mr Burden attended to provide oral evidence to the Tribunal;
c. written submissions provided to the Tribunal by the applicant and his daughter, including Statements of Lived Experience and Carer Impact. Both Mr Ward and Ms Ward attended to give oral evidence to the Tribunal.
45.This documentary evidence and the oral evidence given at hearing will be referenced in consideration of the issues before the Tribunal.
CONSIDERATION
ARE THE ACCESS CRITERIA MET
46.Section 21 of the NDIS Act provides that a person meets the access criteria if the CEO is satisfied the person meets the age, residence and disability requirements.
47.As the task before the Tribunal is to stand in the shoes of the CEO in relation to the decision under review, it is now the Tribunal who must reach the required level of positive satisfaction that the access criteria are met.
The Age and Residence Requirements
48.It is not in dispute between the parties that Mr Ward meets the age and residence criteria set out in sections 22 and 23 of the NDIS Act.
49.He was under 65 years of age at the time his initial application to the NDIA was made and he was a resident citizen of Australia at the time the application was considered. I accept and find these criteria are met.
The Disability Requirements
50.The disability requirements are set out in section 24 of the NDIS Act and are cumulative in nature. All the criteria must be met in order for Mr Ward’s application to succeed.
Section 24(1)(a) – Does Mr Ward have a disability attributable to a relevant impairment?
51.The Agency does not dispute that Mr Ward has a disability attributable to a physical impairment, namely Chronic Lumbar Spondylosis[30].
[30] Respondent’s Statement of Facts, Issues and Contentions (A1) [20]
52.There is no definition of disability or impairment in the NDIS Act but the Access Guidelines suggest an ‘impairment’ is a ‘loss of or significant change to the body’s function or structure’.[31]
[31] Applying to the NDIS Guidelines p6
53.Having regard to the medical evidence before the Tribunal, particularly the reports of Dr Nitchingham[32] and of Mr Burden[33], I am satisfied that Mr Ward has a loss or significant change in his body’s function because of his Chronic Lumbar Spondylosis. I therefore find he has an impairment which can be identified as a physical impairment.
[32] C10, C12
[33] D1
54.The Agency has properly conceded this criterion is met.
Section 24(1)(b) – Is Mr Ward’s physical impairment permanent?
55.Section 24(1)(b) provides that a relevant impairment must be permanent, or likely to be permanent, before eligibility to access the scheme will be established. The Agency does not dispute that Mr Ward’s condition is permanent.
56.In National Disability Insurance Agency v Davis (Davis), Mortimer J explained that the critical consideration for this section is that it is the impairment, not the cause of the impairment or the underlying medical diagnosis, which must be permanent.[34]
[34] National Disability Insurance Agency v Davis [2002] FCA 1002 (Davis) [86]
57.In considering whether Mr Ward’s Chronic Lumbar Spondylosis based physical impairment is permanent the Tribunal must consider whether there are any other known, available and appropriate evidence-based treatments likely to remedy the impairment.[35]
[35] Access Rules, Rule 5.8
58.In Davis, Mortimer J considered the meaning of ‘permanent’ in relation to sections 24 and 25 and formed the view that in the context of the Act the best interpretation to be applied would be ‘enduring’. She re-iterated that the descriptor should be applied to the impairment, not the causative medical condition, and that in considering whether medical treatment might ‘remedy’ the condition (as set out in Rule 5.4) the proper enquiry would be to ask whether available treatment might result in ‘something approaching a removal or cure of the impairment.’ It was not sufficient, in her view, for proposed further treatment to simply relieve or improve the impairment. [36]
[36] Davis [136]
59.I have considered the medical evidence and note:
a. Dr Nitchingham in his report dated 24 April 2024 recorded that Mr Ward actively participated in his current pain management plan which plan was regularly reviewed and updated by Dr Nitchingham. Despite this Dr Nitchingham noted that Mr Ward’s pain medication did not relieve his pain completely but only kept pain at a level where Mr Ward could function.[37]
b. Dr Nitchingham noted that Mr Ward’s condition was degenerative in nature and would deteriorate over time despite any treatment. Therapies identified in Mr Burden’s report would not remedy Mr Ward’s condition, although they may support maintenance of function.[38]
c. Dr Nitchingham’s report dated 29 January 2024 stated that Mr Ward’s condition was not amenable to surgery and that pain management had achieved the best result possible. There were limitations to how many pain killers could be utilised due to significant side effects experienced by Mr Ward. Exercise was severely limited as an option due to Mr Ward’s significant pain.[39]
[37] C12
[38] C12
[39] C10
60.On the basis of the above noted medical evidence I am satisfied that there are no identified alternative treatments that are likely to remedy Mr Ward’s physical impairment arising from his Chronic Spondylosis.
61.I find that Mr Ward’s impairments are, or are likely to be, permanent.
62.The Agency has properly conceded this criterion is met.
Section 24(1)(c) - Does Mr Ward’s physical impairment result in substantially reduced functional capacity?
63.The Agency’s position is that Mr Ward’s physical impairment does not substantially reduce his functional capacity in any of the six activities identified in the NDIS Act.[40] These activities, communication, social interaction, learning, mobility, self-care and self-management, are identified, but not defined, in section 24(1)(c).
[40] A1 [42]
64.To meet the requirement of this section, substantially reduced function in only one of the six activities is required.
65.Neither the NDIA Act nor the Access Rules set out the content of each activity. Some guidance is provided in the Access Guidelines as follows:
a.Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
b.Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
c.Learning – how you learn, understand and remember new things, and practise and use new skills.
d.Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
e.Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
f.Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[41]
[41] NDIS Access Guidelines October 2024
66.Mr Ward contends that as a result of his lumbar condition he has substantially reduced function in the activities of mobility and self-care. There was no assertion that his capacity for communication, social interaction, learning or self-management was impaired.[42]
[42] C14 and oral evidence of Mr Ward
67.The Agency’s position is that although Mr Ward undoubtedly has functional difficulty as a result of his back condition, that difficulty does not reach the threshold necessary to be ‘substantial’ for the purposes of the Act. [43]
[43] A1 [53]
68.In Albiol v NDIA (Albiol)[44] Senior Member Collins held that ‘substantially reduced function’ had a high threshold in the context of the Scheme given the NDIS was not intended to provide customised supports to everyone with a disability. The need to safeguard the financial viability of the scheme underlined the need to consider access carefully.[45]
[44] [2024] AATA 496 at [68] to [69]
[45] Albiol and Section 3(3) and section 4(17) of the NDIS Act
69.The Tribunal’s task here is two-fold:
a. Firstly the Tribunal must consider whether the applicant’s circumstances are captured by the deeming provisions in the Access Rules (set out below); and
b. Secondly, the Tribunal must consider whether, despite the applicant’s circumstances not being captured by the deeming provisions, they in any event have a substantially reduced functional capacity in respect of the section 24(1)(c) activities. [46]
[46] [2024] AATA 496 at [29]; Mulligan and NDIA (Mulligan) [2015] FCA 544
70.Rule 5.8 of the Access Rules provides that:
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 … 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.
71.In Mulligan v NDIA (Mulligan) Mortimer J held that the legislative scheme contemplated a relatively high degree of precision by decision makers in assessing an applicant’s capacity. The assessment to be undertaken was described as ‘avowedly functional and multi-faceted’ but was not considered to be a comparative exercise. The focus was on a functional, practical assessment of what that particular applicant could and could not do.[47]
[47] Mulligan v NDIA 233 FCR 201 at [55]-[56], [77]
Considering the deeming provisions
72.Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Mr Ward can participate ‘effectively or completely’ in each activity without the use of ‘assistive technology, equipment or home modifications’ (other than commonly used items).
73.‘Effectively and completely’ does not mean ‘wholly or perfectly’ but an inability to complete only one task of an activity would not be enough. [48] The proper assessment is to consider the degree to which the person can participate in all the tasks, the whole of the activity.
[48] National Disability Insurance Agency v Foster (Foster) [2023] FCAFC 11 [83]
74.The terms ‘assistive technology’, ‘equipment’ or ‘commonly used items’ are not defined in the Access Rules or the NDIS Act. The NDIS has lists of assistive technology it may fund[49] which provides some guidance and equipment must be considered in its ordinary meaning. But what of ‘commonly used items’?
[49] NSIA Assistive Technology Guidelines
75.In Rooney and National Disability Insurance Agency (Rooney)[50] Senior Member Cameron formed the view the term must relate to items which were commonly used by persons with the same impairment as the applicant under consideration.
[50] [[2021] AATA 3523
76.In this way, glasses are commonly used items used by persons with a vision impairment, crutches or a walking stick are commonly used items for those with a mobility issue and a back brace may be common to those with back pain.[51]
[51] Rooney [26]
77.Other indicia of ‘commonly used items’ were considered to be:
a. the item was generally accessible;
b. could be used without the need for complex or specialised customisation or installation;
c. is relatively simple to use; and
d. is relatively inexpensive.[52]
[52] Rooney [27]
78.The fact that professional input into the selection of an item was necessary was not a bar to an item being considered ‘commonly used’. For example glasses, specifically named in the Access Rules as a ‘commonly used item’, required professional input and prescription before use.[53]
[53] Rooney [28]
79.The second rule, Rule 5.8(b), provides that substantially reduced functional capacity will be deemed where the person usually requires assistance from other people to participate in the activity.
80.The third rule, Rule 5.8(c) (that the person is unable to participate despite assistive technology or assistance from others) does not apply in this circumstance.
81.In considering Mr Ward’s functional capacity the Tribunal has relied on the evidence provided by Mr Burden, Occupational Therapist, in both his functional assessment report and his oral evidence to the Tribunal.
82.Given the time since Mr Burden’s assessment, oral evidence provided by both Mr Ward and his daughter has been relied on to provide additional context to Mr Burden’s assessment.
Communication, Learning, Self-management, Social Interaction
83.There is no contention by Mr Ward that he is substantially impaired in his ability to communicate, socially interact, learn or self-manage as a result of his chronic lumbar spondylosis.[54] Considering the Access Guidelines I am satisfied and find that Mr Ward’s Chronic Lumbar Spondylosis is not productive of substantially reduced functional capacity (either through the deeming provisions or otherwise) for any of these four activities. This conclusion is based on the following:
[54] C14 and Oral evidence
a.Mr Burden assessed Mr Ward as having generally intact communication skills.[55] Mr Ward was observed to speak clearly and appropriately during the hearing and had no difficulty in understanding and responding to questions put to him. Mr Ward did not require assistive technology or help from anyone else with his communication.
[55] D1 at p 148 of Exhibit 1 and Oral evidence,
b.Although Mr Burden felt Mr Ward’s ability to learn new things was impaired by Mr Ward’s cognitive impairment, this cognitive impairment was not directly related to his lumbar spondylosis.[56]
[56] D1 at p 150 of Exhibit 1 and Oral Evidence
Mr Ward did not contend for any difficulties with his ability to learn. He gave evidence about an ability to manage computer use, using various games and applications. Mr Ward did not identify any assistive technology or learning support he required.[57]
[57] Oral evidence
c.Mr Ward’s evidence to Mr Burden was that he was able to manage his finances, medications and appointments and did not need assistance with these tasks. Mr Burden was nevertheless of the view that as a result of his cognitive impairments Mr Ward would require assistance with decision making and appointments.[58] These cognitive impairments were not directly linked to Mr Ward’s lumbar spondylosis.
[58] D1 at p140 and 156 of Exhibit 1, Oral Evidence, C14
Oral evidence of Mr Ward was that although his daughter did make some of Mr Ward’s medical appointments, this was due to her need to schedule them around her own commitments rather than any inability on his part.[59] Mr Ward utilised a pill box and a computer to assist him with his banking and his medication management, which equipment I consider to be commonly used.
[59] C14, C15 and Oral Evidence of Mr Ward and Ms Ward
d.Mr Burden opined Mr Ward had difficulty with social interaction because of pain related mobility restrictions and cognitive impairments.[60] In Madelaine v NDIA the Tribunal held “The criteria referred to in the Access Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills”.[61]
The evidence of Mr Ward is that he is able to interact with his family on a regular basis (particularly those who reside with him) and that he maintains old friendships with people who will, on occasion, visit or call him.[62]
Ms Ward gave evidence that on occasions when her dad is able to attend softball matches, he interacts independently with a range of people.[63]
There are undoubtedly times when Mr Ward declines social occasions due to pain limitations, but I am satisfied these do not impact on his capacity to engage with people, manage his emotional responses to people and maintain friendships.
[60] D1 at p136, 142, 148-149 of Exhibit 1
[61] Madelaine and National Disability Insurance Agency (Madelaine) [2015] FCA 544 at [87]
[62] C14 and Oral Evidence
[63] Oral Evidence from Ms Ward
Mobilisation
84.In his initial report[64] Mr Burden assessed Mr Ward as being able to mobilise independently on level ground both indoors and outdoors as follows:
a. Indoors with no aid – 50 metres
b. Outdoors with no aid – 100 metres
c. Outdoors with a single point stick – 100 metres
d. Outdoors with a four wheeled walker – up to 200 metres
[64] D1 at p150 to 152 of Exhibit 1
85.I accept the evidence on behalf of Mr and Ms Ward that Mr Ward has had a deterioration in his mobility in the 12 months since Mr Burden’s assessment.[65] I don’t feel the need to prefer evidence of any one witness over the other as any discrepancy in their recollection is minor in nature only. Mr Burden agreed the reported deterioration would be congruent with Mr Ward’s degenerative condition and the time that had passed since the assessment.[66]
[65] Oral evidence from Ms Ward
[66] Mr Burden’s oral evidence
86.The oral evidence given by the Wards to the Tribunal (which I accept) was nevertheless that Mr Ward was able to mobilise within the home with a stick between his bedroom, bathroom, kitchen and lounge. Sometimes he can walk outside to the garden or to the car. Mr Ward is also able to drive to the shops and walk between 60 metres (Mr Ward) and 200 meters (Ms Ward) with the use of a wheeled trolley when he gets there.[67] I accept that these distances reflect Mr Ward’s capacity for mobilisation.
[67] C14 at p119, A2 at p26 of Exhibit 1 and Oral Evidence of Mr and Ms Ward
87.Additionally, Mr Ward was observed by Mr Burden to be able to independently transfer from his bed to standing, on and off the toilet and from his recliner to standing, albeit partially using his electric lifter chair.[68] He was observed to manage 4 steps at the rear of his home utilising the hand-rails and a two-feet-per-step method. During the hearing Mr Ward demonstrated to the Tribunal his ability to move from sit to stand and back several times and to mobilise within the room.
[68] D1 at p141 of Exhibit 1
88.I am satisfied that any devices used by Mr Ward for this activity (such as rails, electric lifter chair, shopping trolley and walking stick) are commonly used items for persons in his situation. I find that the deeming provision in Rule 5.8(a) does not apply. Neither of the other deeming provisions apply to this activity either.
Is there substantially reduced capacity in any event?
89.Mr Ward argues that although he can manage mobility some days, his capacity varies significantly as a result of his pain. Some days (the worst days) he is only able to move from his bed to the toilet and back.[69]
[69] C14 and Oral Evidence of Mr Ward
90.Ms Ward’s oral evidence was that in the last 90 days Mr Ward had had around 10 good days (she identified these as times Mr Ward was able to walk outside or walk by his granddaughter in the car as she left in the morning, a favourite game of hers), about 20 regular days (where he was able to complete some tasks at home), 60% harder days (approximately 54 days) where he can walk within the house but not manage a lot else, and the rest (around 6 days) where he essentially spent the day in bed. She was of the view the worst days were becoming more frequent and that any extra activity, such as a medical appointment or scan, could leave her dad debilitated for days.[70]
[70] Oral evidence of Ms Ward, A2
91.In considering episodic variations in capacity the Access Guidelines provide the following guidance:
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
92.Taking into account Mr Ward’s ‘ups and downs’ (as estimated by Ms Ward) I am satisfied that there are a majority of days in which Mr Ward is able to get up independently and mobilise (albeit with a walking stick and some difficulty) within his home at least between his bedroom, bathroom, kitchen and lounge. There are further days (around 30 in the last 90) where Mr Ward had the capacity to mobilise sufficiently to drive to the local shops, to engage with his granddaughter and to complete tasks at home.
93.In Madelaine Deputy President Humphries held that the threshold requirements to achieve functional capacity in relation to mobility were relatively modest. He held:
‘a person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room’.[71]
[71] Madelaine at [104]
94.Although no particular distance is specified in the Access Guidelines as defining the requisite level of mobility, DP Humphries was of the view 50m of independent mobility suggested the necessary capacity.[72]
[72] Madelaine at [105]
95.I have some concerns about considering crawling an appropriate method of mobilisation for an adult but that does not arise in this matter. My findings as to Mr Ward’s mobility are set out in paragraphs 86 and 92 above.
96.As a result, in considering whether Mr Ward could be said to have a substantially impaired functional capacity in relation to mobility I have reached the conclusion he does not.
97.I acknowledge that Mr Ward’s mobility is significantly impaired as a result of his Chronic Lumbar Spondylosis and that for a man who has always been active and independent that is a matter of great distress. I acknowledge that this reduced mobility has a significant impact on Mr Ward’s ability to participate in activities he enjoyed and on his ability to complete activities at home. I nevertheless am satisfied, on the basis of the evidence before the Tribunal, that the reduction in Mr Ward’s mobility does not meet the threshold of ‘substantially reduced functional capacity’ required by the Act.
Self-Care
98.The Access Guidelines describe self-care as follows:
Self-Care – personal care, hygiene, grooming, eating and drinking and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
99.I also understand this activity to include all those secondary tasks related to maintaining oneself such as cleaning and maintaining the home, doing the laundry, doing the shopping and meal preparation.
100.Mr Burden’s evidence was that Mr Ward was able to manage most elements of his self-care (within the definition above) with some modified practices. Activities below the knee were the only identified exception such that Mr Ward required a podiatrist to cut his toenails.[73]
[73] D1 at p153 of Exhibit 1
101.Earlier in his report, however, Mr Burden noted that Mr Ward was:
a.unable to prepare main meals without assistance from his daughter;
b.unable to change bed linen (being reliant on his daughter);
c.unable to complete heavy cleaning such as vacuuming, mopping, cleaning the bathroom, and washing and hanging out laundry (being reliant on his daughter);
d.unable to manage a weekly shop (being reliant on his daughter); and
e.unable to manage gardening and home maintenance (being reliant on his daughter and family)[74]
[74] D1 at p139 of Exhibit 1
102.Evidence from both Mr Ward and Ms Ward confirmed that Mr Ward was unable to complete any of the activities set out in the above paragraph because of his pain and limited range of movement. They both confirmed that Mr Ward relied on his daughter almost exclusively for these tasks.[75]
[75] C14, C15, A2 and Oral Evidence
103.In relation to personal care, Ms Ward’s evidence was that although Mr Ward is independent in these tasks, he now often only showers once every three days because of his pain.
104.I am satisfied that the evidence establishes Mr Ward is only able to manage one task in this activity without assistance (the personal care task). I am satisfied and I find that the evidence establishes that as a result of his physical impairment Mr Ward is otherwise unable to complete any other aspects of the self-care activity without the assistance of another person.
105.As such I find Mr Ward’s circumstance fits within the Rule 5.8(b) deeming provision and he must be considered to have a substantially reduced functional capacity to undertake the activity of self-care.
106.As a result I find that Mr Ward meets the criterion in section 24(1)(c).
Section 24(1)(d) - Do Mr Ward’s impairments affect his capacity for social or economic participation?
107.The Agency concedes that this criterion will be met if I find section 24(1)(c) is met.
108.Given Mr Ward’s high levels of pain, restricted mobility and variability of symptoms I am satisfied and find that this criterion is met as a result of his Chronic Lumbar Spondylosis. Mr Ward has been unable to work for many years and has very limited social opportunities as a result of his physical impairment.
Section 24(1)(e) – Is Mr Ward likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
109.Derrington J in Foster considered the focus of this provision is on whether a prospective participant required support under the NDIS, or whether their support needs could most appropriately be met by other systems.
110.Derrington J held that it was a ‘legislative requirement’ for the Tribunal to consider whether, in a particular case, the support required must be provided by the NDIS or was available elsewhere.[76]
[76] NDIA v Foster [2023] FCAFC 11 at [93]
111.The services Mr Burden recommended included:
a. 6.5 hours a week of domestic care;
b. 3 hours of community support.
c. A range of equipment recommendations;
d. Occupational therapy (20 hours)
e. Physiotherapy assessment;
f. Exercise Physiology assessment; and
g. Psychology assessment.
112.In oral evidence Mr Burden conceded the recommended psychology services and some of the equipment recommendations did not relate to impairments arising from the Chronic Lumbar Spondylosis.
113.The Agency’s position is that all of the supports recommended for Mr Ward can be appropriately provided by other government and community services such as GP management plans and My Aged Care services.[77]
[77] A1
114.The Agency further argued that in the absence of any application by Mr Ward to these services the Tribunal simply could not be satisfied that necessary supports could only be provided by the NDIS and not through existing community services. [78] It is noted the NDIS was not intended to take the place of existing services.
[78] A1 at [102]
115.In oral evidence, Mr Burden agreed that most of the recommended supports could be accessed through either the Commonwealth Home Support Programme (CHSP) or the Home Care Packages programme (HCP). He had some concern that supports, such as physiotherapy and exercise physiology, may not be available at the intensity Mr Ward might require, but noted it was some time since he worked with those programs.
116.I have considered Mr Burden’s concerns in light of the totality of the evidence before the Tribunal. I note:
a. Mr Ward’s evidence that he ceased physiotherapy on the recommendation of his physiotherapist because it exacerbated his pain.[79]
b. Evidence from Mr Ward’s treating physiotherapist that Mr Ward was unable to tolerate manual treatments and as a result referral to hydrotherapy was made.[80]
c. Mr Ward’s oral evidence he was unable to continue with hydrotherapy because walking the ramp to get in and out of the pool was very difficult and that a particular exercise with a pool noodle had significantly exacerbated his pain.
d. Dr Nitchingham’s conflicting opinions about the benefits of physiotherapy for Mr Ward, suggesting in one report that it might be appropriate,[81] but in another stating it might only assist in an acute exacerbation. Dr Nitchingham noted Mr Ward had very limited ability to exercise.[82]
[79] Oral evidence of Mr Ward, Physiotherapy records at C13
[80] C13
[81] C12
[82] C10
117.On the basis of this evidence I have concluded that physiotherapy or exercise physiology is not likely to be something Mr Ward could tolerate at an ‘intensive’ level. Although he may well benefit from gentle supervised exercise and/or physiotherapy, I find it unlikely such services would be manageable or required at high levels of intensity.
118.In oral evidence Ms Ward confirmed that she was aware of available aged care services and knew how to obtain an ACAT assessment for her dad. She stated she had assisted a neighbour in obtaining such an assessment.
119.In closing submissions Ms Ward made assertions, unsupported by any evidence provided to the Tribunal, that CHSP programmes at Level 4, High Needs Care, could provide $62,000 of supports per year. Ms Ward advised that this would equate to 12.5 hours of support a week. She further argued that as Mr Burden had recommended 37.5 hours of support a week this would not be suitable. I do not know how her calculations arose.
120.By my calculation Mr Burden recommended 9.5 hours of support a week. Even taking into account the recommended 20 hours of Occupational Therapy a year, weekly support hours would equate to no more than an additional half hour of supports. These hours would fit within the CHSP package Ms Ward advised of.
121.Ms Ward also gave evidence that she was familiar with the NDIS as both her daughter and her mother were NDIS participants. She believed an NDIS plan would provide supports of around $150,000 a year for her dad and argued that therefore the NDIS would be better for her dad. Again, no evidence for this figure was provided.
122.The determination of ‘reasonable and necessary supports’ for NDIS participants is a separate process from the determination of access to the Scheme.[83] There is no evidence led by which I can accept that a blanket allowance of $150,000 per year for Mr Ward as an NDIS participant would arise.
[83] Mulligan v NDIA [2015[] FCA 544 at [34]
123.There is no evidence before me to support a finding that appropriate supports cannot be provided by the CHSP or HCP programmes, particularly where no application has been tested.
124.I have considered the eligibility requirements for the CHSP and HCP as set out in Exhibit Two and Three.
125.These are extremely limited documents and set out simply that:
a. CHSP requires the applicant must be over 65 years of age.
b. HCP requires the applicant be over 65 years of age and undergo a financial assessment.
126.Without more I have no basis to determine that Mr Ward would not be eligible for these services. I accept Mr Burden’s evidence that in his experience the sorts of supports recommended for Mr Ward can be provided through these services.
127.For these reasons I find that there are other community services available to Mr Ward through which he could access the support services he requires and as such he does not require support under the NDIS for his lifetime.
128.This criterion is not met.
Section 25 - Are the early intervention requirements met?
129.Section 25(1)(d) provides that a person does not meet the early intervention requirements if identified early intervention supports for the person are not most appropriately funded or provided through the National Disability Insurance Scheme.
130.As I have already found it is more appropriate that Mr Ward access the supports he requires through available aged care services than through the NDIS, the requirements of this section are not met.
CONCLUSION
131.The Tribunal acknowledges that as a result of his chronic low back pain Mr Ward suffers from a painful condition which negatively impacts his function and his capacity for daily activities. This is particularly so in relation to self-care activities for which Mr Ward has substantially reduced functional capacity.
132.The Tribunal further acknowledges the significant impact on Ms Ward of currently providing all the supports for Mr Ward herself.
133.However, the Tribunal cannot be satisfied that Mr Ward meets the criteria for access to the NDIS given there are alternative community supports available to him.
134.For the above reasons I find that Mr Ward has not met the disability criteria or the early intervention criteria for access to the scheme.
135.As I have reached the same conclusion as the decision under review I will affirm that decision.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
0
7
0