White and National Disability Insurance Agency (NDIS) - [2024] ARTA 943

White and National Disability Insurance Agency (NDIS) [2024] ARTA 943 (10 December 2024)
Applicant/s:  Darren White
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/4280

Tribunal:General Member Dodd
Place:Perth
Date:10 December 2024

Decision:The Tribunal affirms the decision under review.

.........................[Sgd]...............................
General Member Dodd

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria –– osteoarthritis – chronic pain– whether impairments have resulted in substantially reduced functional capacity – whether provision of early intervention supports is likely to reduce the Applicant’s future needs for supports in relation to disability – whether best funded by the NDIS – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Administrative Review Tribunal Act 2024 (Cth) ss 23, 70(1), 70(2)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 20, 21, 21(1), 22, 23, 24, 24(1), 24(1)(a), 24(1)(b), 24(1)(c), 24(1)(d), 24(2), 24(3), 25, 25(1)(a)(i), 25(1)(b), 25(1)(c), 25(1)(d), 25(1A), 25(2), 27, 99, 100(6), 209(1)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 ss 125, 126
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 5.4, 5.5, 5.6, 5.7 5.8, 5.8(a), 5.8(b), 5.8(c), 6.1, 6.2, 6.2(a)(i), 6.2(b), 6.2(b), 6.2(c)(i), 6.2(c)(ii), 6.2(c)(iii), 6.2(c)(iv), 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.9(a), 6.9(b), 6.9(c)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 7.5(a)
Cases
Holmes and National Disability Insurance Agency [2017] AATA 2750
Madelaine and National Disability Insurance Agency [2020] AATA 4025
MHZQ and National Disability Insurance Agency [2019] AATA 810
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
MRLK and National Disability Insurance Agency [2021] AATA 3896
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Rooney and National Disability Insurance Agency [2021] AATA 3523
Young and National Disability Insurance Agency [2014] AATA 401
Secondary Materials
Explanatory Memorandum to the National Disability Insurance Scheme Bill 2012 (Cth)
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS – Pre-legislation changes, (Web Page) align="center">Statement of Reasons
BACKGROUND

Mr White (the Applicant) is a 54-year-old man who seeks access to the National Disability Insurance Scheme (the NDIS).
The Applicant lives in a cottage style home in the outer suburbs of Perth with his wife and 34 year-old son. His son is an NDIS participant, having gained access to the Scheme based on impairments attributable to Down syndrome. His wife has issues with a pain condition and poor mobility.[1] The Applicant has previously worked in various roles including as a truck driver, in an underground mine and as a welder. He is currently in receipt of a Disability Support Pension.
[1] R1, page 630.
On 12 April 2023, the Applicant applied to the National Disability Insurance Agency (the Respondent) to access the NDIS by submitting an Access Request Form.[2] In the request form the Applicant described having the following disabilities:[3]
(a)‘Osteoarthritis’.
(b)‘Cerebral Vascular Disease (Stroke in 2014)’.
[2] R1, T Documents, T41, pages 169-196.
[3] R1, T Documents, T41, page 178.
In the request form the Applicant’s general practitioner, Dr De Silva, described the Applicant’s disabilities as:[4]
(a)‘Osteoarthritis’.
(b)‘Previous Cerebral Vascular Disease with mild left sided residual impairment’.
[4] R1, T Documents, T41, page 182.
The Applicant has several health conditions but is only seeking access to become a participant of the NDIS on the basis of the impairments arising from ‘my arthritis’ (osteoarthritis).[5] He has been diagnosed with ischaemic heart disease and underwent triple coronary artery bypass grafts in 2014. The Applicant has had three previous cerebrovascular accidents and has been left with residual left arm weakness. Additionally, he has been diagnosed with type 2 diabetes, hypertension, hypercholesterolaemia, emphysema, gastro-oesophageal reflux disease and diverticular disease.[6]
[5] R1, page 621.
[6] R1, T Documents, T66, page 523.
On 16 May 2023, a delegate of the Chief Executive Officer (CEO) of the Respondent made a decision under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) to refuse the Applicant’s request to access the NDIS (the Original Decision) on the basis he did not meet the access criteria set out in sections 24 and 25 of the NDIS Act.[7]
[7] R1, T Documents, T42, pages 197-201.
On 17 May 2023, the Applicant sought internal review of the delegate’s decision.[8]
[8] R1, T Documents, T44, page 203.
On 14 June 2023, another delegate of the CEO affirmed the Original Decision.[9] This is the Reviewable Decision currently before me.
[9] R1, T Documents, T2, pages 27-38.
On 19 June 2023, the Applicant applied to the then Administrative Appeals Tribunal (the AAT) for review of this decision.[10]
[10] R1, T Documents, T1, pages1-5.
On 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 ART Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal. The ART 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.
THE LEGISLATIVE FRAMEWORK
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024. An issue arises in relation to the Applicant’s Tribunal application, being whether the Tribunal should apply provisions of the NDIS Act as they were in force prior to the commencement of the Amending Act on 3 October 2024, or whether the amended provisions in force as of 3 October 2024 should be applied instead.
The age (section 22) and residence (section 23) requirements remain unchanged in the NDIS Act. However, sections 21, 24 and 25 of the NDIS Act have been amended by the Amending Act.
Under section 125 of the Amending Act, the section 21 amendments apply to access requests that are made to the National Disability Insurance Agency (the NDIA) by a prospective participant on or after 3 October 2024.
Under section 126 of the Amending Act, the section 24 and section 25 amendments apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024.
This means these amendments will only apply to access matters that are before the Tribunal when an original decision and an internal review decision have been made in accordance with the new Amending Act requirements.
Section 126 of the Amending Act also provides that the NDIS rules continue to apply (under section 27 of the NDIS Act as in force before 3 October 2024).
As the Applicant’s request for access to the NDIS was made before 3 October 2024, the Tribunal application should be determined in accordance with the NDIS Act and the NDIS rules as they existed before the commencement of the Amending Act on 3 October 2024.
The objects of the Act are set out in section 3 of the NDIS Act. These include giving effect to Australia’s obligations under the Convention of the Rights of Persons with Disabilities;[11] supporting the independence and social and economic participation of people with a disability; providing reasonable and necessary supports for participants; and enabling people with disability to exercise choice and control in pursuit of their goals. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life. They should also have certainty that they will receive the care and support that they need over their lifetime. l have considered the objects and general principles of the Act in making my decision.
[11] Australian Treaty Series [2008] ATS 12.
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: [12]
[12] Section 21(1) of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(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).
(Original emphasis)
There is no dispute the Applicant satisfies the age and residence requirements. Accordingly, the matters in issue are whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the NDIS Act.
Section 24 of the Act states:[13]
[13] Section 24 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(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).
(Original emphasis.)
The requirements of subsection 24(1) of the NDIS Act are cumulative and all criteria must be met.
The Respondent has submitted that they accept the Applicant meets the criteria in paragraphs 24(1) (a), (b) and (d) of the NDIS Act in respect of his impairments arising from osteoarthritis.
If the Applicant does not meet the disability requirements, the Tribunal will consider whether he meets the early intervention requirements set out in section 25 of the Act which state as follows: [14]
[14] Section 25 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
(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 that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; 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 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.
(Original emphasis.)
The Minister may, under section 27 and subsection 209(1) of the NDIS Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation. The Tribunal is bound to apply the legislation as enacted, including the Rules.
The NDIS 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.[15] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS – Pre-legislation changes (Operational Guideline).[16] The latest update of the Operational Guidelines is dated 14 October 2024.
[15] Re Drake and Minister for Immigration and Ethnic Affairs(1979) 2 ALD 634.
[16] National Disability Insurance Agency, Our guidelines – becoming a participant – Applying to the NDIS – Pre-legislation changes, (14 October 2024) (Web Page) <>
The Tribunal must decide whether the Applicant meets the access criteria set out in section 21 of the NDIS Act to become a participant in the Scheme. As mentioned, the Respondent accepts that the Applicant meets the age requirements and the residence requirements specified in sections 22 and 23 of the NDIS Act.
It is common ground between the parties that the Applicant meets the elements of the disability requirements in paragraph 24(1)(a) of the NDIS Act, in that he has a disability attributable to physical impairments arising from osteoarthritis. The Respondent accepts that the Applicant’s impairments arising from osteoarthritis are permanent, or likely to be permanent, for the purposes of paragraph 24(1)(b). Furthermore, the Respondent accepts that the Applicant’s impairments affect his capacity for social or economic participation (paragraph 24 (1)(d)). With respect to paragraphs 24(1)(a), 24(1)(b) and 24(1)(d) of the NDIS Act, having regard to the evidence before me, I agree with this view. Nevertheless, I will need to consider with some precision his impairments attributable to disability, because the threshold questions on reduced functional capacity operate not on the concept of disability, but on the concept of impairment.[17] The concept of impairment is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[18]
[17] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51] (Mulligan).
[18] Mulligan at [51].
The Respondent contends that the Applicant’s impairments arising from osteoarthritis do not result in substantially reduced functional capacity to undertake any of the six activities described in paragraph 24(1)(c) of the NDIS Act.[19]
[19] R2, page 5 at [30].
The Respondent also contends that in circumstances where the Applicant's impairments do not satisfy the substantially reduced functional capacity criteria in paragraph 24(1)(c) of the NDIS Act, the Tribunal cannot be satisfied that the Applicant is likely to require support under the NDIS for his whole life (paragraph 24(1)(e)).[20] Furthermore, the focus of paragraph 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.[21] The Applicant seeks support from the NDIS by way of funding to regularly access a physiotherapist to maintain ‘movement and muscle strength’. The Respondent contends that such support is more appropriately provided by the health system.[22]
[20] R2, page 9 at [55].
[21] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [93] (Foster).
[22] R2, page 9 at [56].
If I find that the disability requirements in section 24 of the NDIS Act are not met, I will consider whether the Applicant meets the early intervention requirements set out in section 25 of the NDIS Act. The Respondent contends that the evidence does not support a determination that the Applicant would benefit from early intervention supports in the manner described in paragraphs 25(1)(b) of the NDIS Act. The Applicant argues that providing physiotherapy support now will prevent further deterioration in his functioning and reduce his future support needs.
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal in person on 25 and 28 October 2024. The Applicant was self-represented. The Respondent was represented by Ms Flinn of Counsel, instructed by Ms Hourigan of Maddocks Lawyers, who appeared via Microsoft Teams.
The parties filed with the Tribunal the following documents, which the Tribunal admitted into evidence:
·Applicant’s response to the Respondents SFIC dated 17 August 2024 (Exhibit A1);
·An agreed Joint Tender Bundle of documents, excluding T9 (page 63 and 64) (Exhibit R1);
·Respondent's Statement of Facts, Issues and Contentions (SFIC) filed 14 August 2024 (Exhibit R2); and
·Respondent's submissions on the effect of the amended NDIS Act on the access request filed 23 October 2024 (Exhibit R3).
Exhibit R1 included the T-documents filed by the Respondent on 11 July 2023 under section 37 of the then Administrative Appeals Tribunal Act 1975 (Cth), the evidence filed by the Applicant and Respondent during the course of this application and the NDIS Guidelines entitled Mainstream and Community Supports Overview, Mainstream and Community Supports Interfaces and Applying to the NDIS.

The Tribunal had the benefit of oral opening and closing submissions from both parties.
The Applicant gave evidence in person and was cross-examined. None of the Applicant’s treating practitioners were called to give evidence. The Respondent called as a witness occupational therapist Mr Fielke, who gave evidence in person.
The Tribunal has considered the relevant factual and expert evidence and will refer to evidence in its decision that was specifically relied upon by a party or was directly relevant to the determination of this matter.
THE EVIDENCE
Applicant’s Evidence
As previously stated, the Applicant lives with his wife and son. Their home is a single storey dwelling which the Applicant is able to access entry at the front of the house and rear patio area. There is no substantial garden area although his wife manages some plants as a hobby. The house is located approximately a ten-minute drive from the Applicant’s local shopping centre and general practitioner. The Applicant drives an automatic car and is the sole driver for the household, neither his wife nor son being licenced to drive.
At the hearing the Applicant identified the following impairments that he attributes to pain and mobility restrictions arising from his diagnosis of osteoarthritis:
(a)Difficulty dressing his lower body (especially jeans and trousers), particularly on bad days and during colder weather;
(b)Inability to put on socks and shoes;
(c)Difficulty getting into and out of chairs;
(d)Slow walking pace and inability to walk for longer than 10 to 20 minutes without needing to rest due to back pain;
(e)Impaired ability to exercise and be physically active due to pain;
(f)Restricted movement from back and hip ‘seizing up’;
(g)Difficulty bending; and
(h)Day to day living tasks affected by his pain and mobility issues.
The Applicant explained that he might have five to ten good days per month, usually following a day where he has rested. During these times he experiences less pain and can be more active although still experiences his physical impairments. Following a day of increased activity such as driving to appointments, he will experience bad days lasting from one to up to four days depending on the amount of activity he has had to do the day before. During these times ‘everything aches or freezes up’ and he will spend most of the day sitting in his recliner chair or in bed. On bad days he will still attend to meals, showering, toileting and trying to keep his muscles moving even if while seated or lying down. If he had to do something like drive to an appointment on a bad day, the Applicant explained that he would just have to ‘push through it’. He also described having more bad days during colder weather. He is less troubled by bad days during the warmer months.
The Applicant has previously been treated with various medications to reduce his pain including opioid analgesics, paracetamol, duloxetine, Lyrica and memantine. He does not currently use these medications for pain management stating that they either have not worked, lost efficacy over time or he became dependent on them and therefore chose to cease using them. He uses topical anti-inflammatory preparations when required. He has not been able to participate in exercise programs due to his pain and asserts that the only avenue available to him for the treatment and management of physical impairments relating to his pain and osteoarthritis is physiotherapy, this being the basis of the support he is seeking through access to the NDIS scheme.
The Applicant is assessed by a pain specialist every 12 to 18 months along with other specialists including a cardiologist, endocrinologist and neurologist. He obtains a yearly Chronic Disease Management plan through his general practitioner which entitles him to five allied health sessions which he divides between diabetic education, optical and physiotherapy. The Applicant’s contention is that he requires regular physiotherapy significantly exceeding the two or three physiotherapy sessions available to him under this plan. He is unable to self-fund further physiotherapy due to his financial constraints.
He stated that he was not aware of, or been offered a referral to, any public health service funded pain management program. He stated that he is only aware of such programs that focus on medication treatment.
Communication
At the hearing, the Applicant did not identify any specific difficulties with communication. He communicates regularly with his wife and son. He stated that he communicates with his general practitioner and other health providers without difficulty or assistance. The Applicant gave evidence that he communicates face to face on a weekly basis with friends when he attends a local sports club to play darts and intermittently through messaging on a group chat platform. He can communicate in writing.
Social Interaction
The Applicant can interact socially with his wife and son on a regular basis. He attends a weekly catch up with a group of about 16 to 18 people to play darts. He enjoys this social interaction. He stated that he did not have any difficulties interacting with any other members of the community.
The Applicant gave evidence that he engages with his dart playing social group in between their weekly meeting at a local sports club by way of a group chat using his mobile phone. This can be up to two to three times per week when people have something interesting they want to share.
The Applicant stated that he used to go fishing but has not done this for some time due to pain tolerability issues. He arranges and attends his medical and allied health appointments on his own and can engage in this process.
When asked by the Tribunal, he did not describe any difficulties with his behaviour or emotions in social settings.
Learning
The Applicant stated that following a stroke in 2014, he has noticed that his ability to recall information and learn new things takes him longer. He gave evidence that he has not required assistance from others to understand information.
The Applicant said that he has been able to download and learn how to play online memory games. He is also able to use the internet to search information. He can access his emails and has learnt to use the basic functions on his computer.
Mobility
The Applicant filed a Statement of Lived Experience (SOLE) dated 21 November 2023.[23] He explained that he is able to walk for about twenty minutes on a good day and about five to ten minutes on an average day. On a bad day he reports having difficulty walking from the bedroom to the kitchen. Furthermore, he stated that he must be careful not to overdo his walking as he can go from having a good day to having a bad day very quickly.[24] The Applicant described his functioning as also being partly dependent on the weather in that he cannot ‘do much at all’ when it is colder.
[23] R1, page 632.
[24] R1, page 632.
The Applicant provided a written statement dated 17 August 2024 in reply to the Respondent’s SFIC.[25] He described that while he can drive for approximately 45 minutes, he will experience stiffness and pain for the following two to three days. He notes that at best he could do a 45-minute drive once per week. He explained that he goes shopping with his wife once a week and that after 15 to 20 minutes he needs to sit and rest for 20 minutes due to pain before resuming. He finds that it takes two to three hours to complete shopping that would otherwise take an estimated hour and a half. The Applicant stated that he needs to get his wife’s help to get changed and care for himself.
[25] A1.
At the hearing the Applicant provided the following evidence regarding his mobility:
(a)He can mobilise around his home without assistance or the use of assistive devices or equipment. He does so at a slow pace due to his experience of pain and stiffness.
(b)He has trouble getting out of chairs, particularly those that are lower set. He uses a table that he has set up next to his recliner to assist with transfers. He does not require the assistance of others for this task.
(c)His bed has been raised in height using bricks such that he can get into and out of bed without requiring any assistance from others or the use of any equipment.
(d)He has installed a handrail in the toilet to assist him with toilet transfers. Prior to the installation, the Applicant would use a modified technique of having to raise himself off the toilet by pushing on the toilet seat between his legs. In the community he will use a disabled toilet if available or use a similar technique of pushing off the toilet seat or using the toilet paper holder. The Applicant stated he installed handrails in the toilet and shower about 18 months ago.
(e)He utilises a handrail in the shower to enter and exit the shower and to help steady him when he is washing his lower limbs and feet. Prior to the installation of the handrail, the Applicant was using a plastic garden chair for these tasks but found it quite unsteady for holding onto for transfers.
(f)He can access the outside aspects of his property without difficulty.
(g)The Applicant stated that he can access cupboards and items around the home provided they are at waist level due to his difficulty bending. He can wash items in the sink but cannot use the dishwasher due to its location and the bending that is required to stack and close the dishwasher. He asks for his wife’s assistance to access items at lower levels.
(h)He can prepare simple meals and snacks and is able to cook items on the stove but cannot use the oven due to its access being below waist height. He can use the microwave and access items in the fridge.
(i)He is unable to pick up items off the floor and utilises a long handled reacher to assist with such tasks. He cannot lift heavier items that are below waist height. He can lift shopping from the shopping trolley into the car and carry them from the car into the house. The Applicant considers a 24 can box of soft drink as the approximate maximum weight he can carry.
(j)He is able to place laundry in a washing machine that has been bracketed at a height above the ground and remove washed clothes and place them in a tumble dryer that is also accessible to him. There is an older front loading washing machine located on the floor that he does not use due to the limitations on his ability to bend.
(k)The Applicant stated that his wife does most of the household cleaning tasks. He cannot vacuum the floors as he finds the vacuum cleaner (an upright cabled type) heavy and pushing it aggravates his back pain. He can assist with sweeping the floors and does so taking his time and having breaks. The Applicant stated that the general household cleaning is a task that has usually always been undertaken by his wife.
(l)His wife generally makes the bed and changes the bed linen. The Applicant stated he could assist if he had to.
(m)On bad days, he often requires his wife’s assistance with lower limb dressing to help him put on trousers and jeans. He usually requires his wife’s help to put on shoes and socks. Around the house he tends to wear slip-on footwear such as thongs.
(n)The family car is a four-wheel drive which he stated he can slide into and out of without assistance.
(o)On a good day the Applicant stated that he would be able to drive for about 45 minutes before having to rest and that this duration would progressively reduce if having to drive further, due to pain tolerability. He reported that he will usually experience a ‘bad day’ following this.
(p)He can walk for up to 10 to 20 minutes before having to rest due to pain. He travels with his wife to the local shopping centre and will assist in the shopping for items retrievable above waist height. He will need to rest outside the shopping centre after 15 to 20 minutes before being able to rejoin her.
(q)The Applicant was able to travel by train on his own to the Tribunal to attend the hearing in person. He managed to walk from the central city train station to the Tribunal, taking approximately 30 minutes and having to stop for a rest midway.
(r)He has experienced a degree weakness in his left arm following his stroke and gave evidence that on occasion he drops items he is carrying in his left hand. He is right-handed.
(s)With regards to fine motor skills, the Applicant stated that he can use a pen to write, is able to hold and throw a dart, and can navigate using the computer keyboard and the functions on his smart phone without difficulty.
Self-care
With regards to self-care, the Applicant’s evidence is that he does not require assistance with personal hygiene. He can shower and toilet independently with the use of the handrails that have been installed. He is independent with grooming, oral hygiene, eating and drinking.
The Applicant attends his general practitioner approximately once per month for his health care needs and monitoring. He is compliant with his prescribed medications and ensures these are delivered on time from his pharmacy by utilising an application on his phone.
The Applicant can dress himself independently although on bad days or in colder weather he requires some assistance from his wife with certain types of lower limb dressing, particularly jeans and trousers. He is generally able to dress himself independently with lighter and looser lower body clothing items such as tracksuit pants and shorts.
Self-management
With regards to the family finances and paying bills, the Applicant states that he and his wife have a joint bank account and that his wife mostly manages the finances. When asked if he could manage this task if required, he stated that he could if he had to.
He assists his wife in organising his son’s medical appointments. He independently organises and attends his own medical appointments. He takes his medications without assistance.
The Applicant gave evidence that he is able to follow instructions given to him by his health care providers regarding the treatment and management of his physical health conditions. He makes his own decisions regarding his health care needs. For example, the Applicant decided not to continue using opioid based pain relief medication due to him having become ‘addicted’ to them.
He can plan trips and attend various appointments by using navigation applications to determine the distance and duration and factor in the time adjustments he needs to make to accommodate for rest breaks along the way.
Physiotherapy
The Applicant gave evidence that he self-funded weekly physiotherapy for about 3 months in the latter part of 2022 and early 2023. He was able to engage in exercises and have physiotherapy the following day to ‘keep everything moving’. He reported experiencing a higher frequency of good days as a result.
The Applicant stated that the benefits of physiotherapy plateaued and were maintained for about a month following his cessation of regular physiotherapy, however, his pain then deteriorated again. He also experienced a return to his previous level of disability during a break from therapy whilst his physiotherapist was away for a three-week period.
Dr De Silva – general practitioner
In her capacity as the Applicant’s general practitioner, Dr De Siva completed the treating professional’s information section of the Access Application Form dated 12 April 2023 (the Access Application). Dr De Silva noted that the Applicant’s impairment was degenerative, and his functional capacity had been affected by disability for six years.[26] She recorded that the Applicant had experienced minimal pain relief despite regular medication changes. Dr De Silva stated that a physiotherapy program had been accessed by the Applicant between October 2022 and March 2023 with some improvements lasting two to three days before limitations and restricted movement returned.[27] She indicates that early intervention supports are not likely to reduce the Applicant’s future support needs.[28] I note that in a previous Access Application dated 6 April 2022, Dr De Silva indicated that early intervention supports would likely reduce the Applicant’s future support needs by alleviating the impact on functional capacity, prevent deterioration of functional capacity, improve functional capacity and strengthen existing supports.[29]
[26] R1, T Documents, T41, page 182.
[27] R1, T Documents, T41, page 183.
[28] R1, T Documents, T41, page 184.
[29] R1, T Documents, T30, page 113.
With regards to mobility, Dr De Silva states in the Access Application:[30]
The osteoarthritis impacts how much Darren is able to move areas of his body, including neck, shoulders, back, hips, knees and fingers. The inflammation between the joints restricts all movements and this also causes debilitating pain. As a result of the osteoarthritis, Darren’s ability to walk, climb stairs, get in and out of bed and chairs, drive and participate in daily living tasks are substantially reduced.
…
Assistive equipment to make using the bathroom and other areas of the house safe.
Darren requires support in the areas of his independence at home and in his community. His mobility and movements are impacted by his osteoarthritis. His wife assists him daily where mobility issues are present (getting in and out of bed and chairs, using stairs). Physiotherapy required to alleviate mobility impact.
[30] R1, T Documents, T41, pages 186-188.
Dr De Silva does not indicate the Applicant experiences substantially impaired communication functioning.
With regards to socialising, Dr De Silva states in the Access Application:[31]
Darren’s ongoing mobility issues have impacted significantly his confidence and this has affected his ability to socialise with family and friends as well as to access his community. The osteoarthritis impacts on Darren’s ability to sit and stand for long periods and this affects many social interactions and types of activities he is able to participate in.
…
Darren needs physical support to access social and community activities and his wife assists each week with this support.
[31] R1, T Documents, T41, pages 187-189.
With regards to learning, Dr De Silva states in the Access Application:[32]
The debilitating restrictions of body movements and pain affect Darren’s ability to cope with processing and retaining new information and learning skills. Darren also feels that his memory has been affected since the cerebral vascular disease.
…
Darren needs help prompting to retain information and engage in new skills.
[32] R1, T Documents, T41, pages 187-190.
With regards to self-care, Dr De Silva states in the Access Application:[33]
Darren is unable to effectively complete all of his personal care tasks …He is unable to maintain the body movements required to complete his daily routines and personal needs. He relies on his wife’s help with this each day.
…
Due to restricted limb movements, Darren requires help with personal care and grooming. He needs help with dressing and putting on shoes.
[33] R1, T Documents, T41, pages 187-190.
With regards to self-management, Dr De Silva states in the Access Application:[34]
Darren is unable to concentrate and undertake personal management needs. His focus each day is to try and cope with restricted body movements and associated pain. His wife manages all household, financial; and daily living tasks for him.
…
Darren needs assistance to manage daily routines and financial management. His wife currently assists in this area as required.
[34] R1, T Documents, T41, pages 187-191.
Dr De Silva comments further on the limitations experienced by the Applicant in assisting with the care needs of his son and the increasing responsibility placed on his wife to be the primary carer for both her son and husband. In Dr De Silva’s opinion, the Applicant’s wife’s ability to sustain this level of care is compromised by her now requiring bilateral knee replacement surgery.[35]
[35] R1, T Documents, T41, page 192.

The Respondent made two requests for further information from Dr De Silva. Dr De Silva responded to targeted questions in reports (undated) and filed in September 2023 and on 1 February 2024. The evidence she provided is summarised as follows:[36]
(a)The Applicant’s diagnosis of osteoarthritis was made prior to 2018 by a previous general practitioner. Dr De Silva also became aware of the diagnosis from specialist letters from the rheumatology clinic at Sir Charles Gairdner Hospital following their assessment of the Applicant’s chronic joint pain.
(b)The Applicant’s osteoarthritis is a degenerative condition and there is no specific cure. Medication treatment may assist in managing symptoms but ultimately these had not been effective for the Applicant and were self-ceased.
(c)Dr De Silva opines that surgical intervention is not indicated due to the widespread nature of his symptoms. There are risks associated with the Applicant having surgery in the context of his medical comorbidities, a history of previous surgical complications and a cerebrovascular accident having occurred during the recovery period. Previous cortisone injections to his lower back resulted in a poor outcome.
(d)Dr De Silva’s opinion is that the Applicant will not benefit from further review by other practitioners from other medical disciplines as he has already been assessed by pain specialists and rheumatologists.
(e)Dr De Silva states that physiotherapy has been the most effective treatment for the Applicant in terms of managing his symptoms, but not in respect of being curative of his condition. The Applicant has already used the physiotherapy sessions available to him under a chronic disease management plan and further access is cost prohibitive for him. Dr De Silva also recommends input from an exercise physiologist to assist the Applicant in losing weight.
(f)Dr De Silva considers that occupational therapy services (to assess his home environment) and psychological intervention (such as cognitive behavioural therapy for chronic pain management) is available to the Applicant through the health system or otherwise but that he is struggling to access these services due to his financial situation.
(g)With regards to his functional capacity, Dr De Silva states that the Applicant has difficulty undertaking activities of daily living such as walking around the house, shopping and cleaning. She considers that due to widespread pain he has trouble getting dressed, putting on shoes, toileting and getting out of bed. She notes that he needs his wife’s support to get out of bed every day.
[36] R1, pages 625-628 and 638-640.
Dr Ledger – orthopaedic surgeon
In a letter to the Applicant’s general practitioner dated 19 March 2014, Dr Ledger, orthopaedic surgeon, indicates that with respect to his knee pain and patellofemoral issues, knee arthroscopy is very unlikely to be of assistance.[37] He records that some improvements have been made with physiotherapy, but the Applicant is still having ongoing patellofemoral pain. Dr Ledger recommended non-operative knee strategies, noting the importance of weight loss. There is mention of the Applicant’s ongoing issues with his right shoulder and pain in his lumbar spine and hips.
[37] R1, T Documents, T15, page 75.
Mr Potter – osteopath
In a letter to the Applicant’s general practitioner dated 3 August 2015, Mr Potter, osteopath, states that the Applicant has been experiencing an episode of back pain and thigh paraesthesia.[38] He recorded examination findings including tenderness, asymmetry and restricted motion throughout the lumbar spine but particularly at L5/S1 and T12/L1.
[38] R1, T Documents, T23, page 90.
Dr Hanna – general practitioner
In evidence is a shared health summary dated 15 June 2017. The document was authored by Dr Sam Hanna, the Applicant’s previous general practitioner. Noted in the medical history are chronic back pain and a diagnosis of osteoarthritis.
Various consultation notes from general practitioners (primarily Dr Hanna) at Mindarie Keys Medical Centre have been submitted spanning the years from 2006 to 2015. Relevantly, the Tribunal notes the following:
(a)In May 2006, the Applicant injured his left upper limb in a hyperextension injury.[39]
[39] R1, T Documents, T53, page 271.
(b)During a consultation on 23 July 2007, ongoing pain and cramps in the Applicant’s left hand, forearm, elbow and shoulder and involvement of his neck is recorded.[40]
[40] R1, T Documents, T53, page 279.
(c)In a letter dated 6 November 2007 to Separovic and Associates in response to questions relating to the Applicant’s left upper limb injury, Dr Hanna states that a steroid injection to the left acromioclavicular joint gave no relief to his pain and an MRI showed a partial tear of the left supraspinatus and some bursitis.[41] He underwent left shoulder surgery without relief of symptoms. He was subsequently diagnosed with left ulnar and median nerve neuropathy for which he had surgery (left ulnar nerve and left carpal decompression).[42] He continued to experience chronic debilitating pain and cramps and was referred to a pain specialist.[43]
[41] R1, T Documents, T53, page 271.
[42] R1, T Documents, T54, page 331.
[43] R1, T Documents, T54 page 332.
(d)On 23 April 2008, Dr Hanna states that the Applicant became frustrated in the context of severe cramp and punched a wall resulting in dislocation of his right metacarpals requiring surgery for reduction and fixation.[44]
[44] R1, T Documents, T53, page 290.
(e)On 30 April 2008 the Applicant reported he had regained some sensation following ulnar nerve surgery but that spasms to his forearm were worse in the cold weather.[45]
[45] R1, T Documents, T53, page 290.
(f)On 18 December 2009, Dr Hanna administered a steroid injection to the Applicant’s right greater trochanteric bursa due to ongoing pain.[46]
[46] R1, T Documents, T53, page 302.
(g)On 1 February 2010, the Applicant reported that he was experiencing pains to the base of his neck.[47]
[47] R1, T Documents, T53, page 303.
(h)On 31 May 2010, Dr Hanna documents the Applicant’s symptom of a sore right lower back and provides advice regarding weight loss.[48]
[48] R1, T Documents, T53, page 310.
(i)On 1 September 2010, the Applicant was notified of the results of a recent X-ray of his right knee. Osteoarthritis is recorded and advice given ‘re fish oil, hydrotherapy…etc’.[49]
[49] R1, T Documents, T53, page 312.
(j)On 26 October 2010, Dr Hanna records:[50]
[50] R1, T Documents, T53, page 313.
-Pain in both knees
-Osteoarthritis
-Weight excess
-Flat feet
-Also bursitis like pains both hips
-Advice re orthotics, losing excess weight, reg panadol osteo, hydrotherapy then review
(k)On 17 July 2012, an ultrasound of the Applicant’s right shoulder is requested following a work related injury. Moderate subacromial/subdeltoid bursal thickening is identified and an ultrasound guided steroid injection to the right shoulder requested.[51]
(l)On 6 August 2012 the Applicant reported lower back pain radiating to his right leg following a back injury at work.[52] A CT scan of his lumbar spine revealed degenerative disc disease at the levels of L3/4 and L4/5 without definitive canal stenosis or nerve impingement and mild facet joint degenerative change on the right at L4/5 and bilaterally at L5/S1.[53] Further investigation with an MRI of his lumbar spine showed lower lumbar disc degeneration and a shallow central and right paracentral posterior disc protrusion without causing neural impingement.[54]
(m)In the context of worsening right shoulder pain not relieved following steroid injection, an MRI of the Applicant’s right shoulder was performed on 25 September 2012. This revealed, among other radiological evidence of shoulder pathology, moderately severe hypertrophic acromioclavicular joint arthropathy.[55]
(n)Following falling backwards from a height at work, the Applicant underwent an MRI of his cervical, thoracic and lumbar spine on 28 March 2013.[56] The results indicate that his cervical and thoracic segments showed mild degenerative changes but were essentially normal for age. There were degenerative disc changes at L3/4 and L4/5 and a small annulus tear at L3/4 that was considered a consequence of either degenerative change or related to recent trauma.
(o)An ultrasound of the Applicant’s hips was performed on 26 November 2013 concerning bilateral hip pain. There was evidence of bilateral trochanteric bursitis.[57]
(p)On 7 February 2014, a referral for psychological counselling was provided to the Applicant noting that chronic pain and the process of workers compensation had been hard for him.[58] Dr Hanna states the Applicant sustained multiple injuries to his back, hips and knees at work almost 12 months prior.
(q)During this period between 2006 to 2015, several types of analgesic medications and pain modifying medications were prescribed.
[51] R1, T Documents, T64, page 484.
[52] R1, T Documents, T64, page 485.
[53] R1, T Documents, T63, pages 402-403.
[54] R1, T Documents, T63, page 403.
[55] R1, T Documents, T63, page 404.
[56] R1, T Documents, T63, page 409.
[57] R1, T Documents, T63, page 416.
[58] R1, T Documents, T52, page 228.
Dr Cheah – consultant rheumatologist
The Applicant was referred to the Department of Rheumatology at Sir Charles Gairdner Hospital by Dr Hanna and was assessed by Dr Cheah, rheumatologist. In addition to Dr Cheah’s clinical assessment and physical examination, several x-rays (feet, knees, hips, lumbar spine and cervical spine) and laboratory investigations were performed. X-ray results indicated mild to moderate osteoarthritis of the Applicant’s left knee, mild lumbar spine disc degeneration and lower lumbar facet joint arthropathy, and moderate C5/6 cervical spine disc degeneration.[59] In letters following a clinic appointment on 3 February 2022, Dr Cheah concludes that the Applicant’s rheumatological problems appeared to be primarily of degenerative aetiology and that, presently, there was no clinical evidence of an underlying inflammatory polyarthropathy.[60]
[59] R1, T Documents, T67, pages 529-530.
[60] R1, T Documents, T67, page 532.
Mr Mulrooney – physiotherapist
In a report dated 7 February 2023, Mr Mulrooney explained that he had been providing physiotherapy treatment to the Applicant on a weekly basis since 5 September 2022.[61] Mr Mulrooney stated that the Applicant had presented with a diagnosis of osteoarthritis and associated reduced mobility and pain. The Applicant was found to have a significant reduction in the range of motion of his shoulders and cervical, thoracic and lumbar spine with related referral of pain to other areas.[62] There was full range of movement in his lower limbs.[63]
[61] R1, T Documents, T40, page 167.
[62] R1, T Documents, T40, pages 165-166.
[63] R1, T Documents, T40, page 166.
Mr Mulrooney documented that treatment had consisted of soft tissue release and mobilisation of the spine, stretches and a home exercise program. He stated that, since commencing physiotherapy, the Applicant had shown improvements in his lumbar flexion and increased neck rotation. Mr Mulrooney opined that, with an increased frequency and ongoing physiotherapy, he expected the Applicant would achieve ‘significant improvement in his symptoms and over the long-term allowing him to participate in activities of his choice’.[64] He noted that when there was a three-week break in therapy, the Applicant reported increased pain and decreased movement, almost to the level of his original presentation.[65]
[64] R1, T Documents, T40, page 167.
[65] R1, T Documents, T40, page 167.
Mr Mulrooney concluded that without funding for ongoing physiotherapy, it is likely the Applicant’s degenerative disease of osteoarthritis will progress faster with further worsening of his functioning and pain, thus requiring more supports in the future.[66]
[66] R1, T Documents, T40, page 168.
Dr Martin – pain specialist
Dr Martin is a specialist pain physician. He provided an undated written response to targeted questions that were received by the Respondent on 1 February 2024.[67] Dr Martin had assessed the Applicant on 6 December 2022 in the context of his presentation with widespread pain on a background of degenerative joint disease and osteoarthritis including bilateral shoulders, knees, hips, low back and elbows.[68] Dr Martin’s clinical impression was that the Applicant’s previous morphine use, along with ongoing codeine use, had likely caused opioid induced hyperalgesia and central sensitisation.[69]
[67] R1, pages 633-637.
[68] R1, page 630.
[69] R1, page 631.
Dr Martin made several recommendations including limiting opioid medication and commencing duloxetine for the treatment of chronic pain related to arthritis. He also recommended weight loss as evidenced based in reducing arthritic knee pain and slowing disease progression, and regular exercise to reduce pain and improve function.[70]
[70] R1, page 635.
Regarding whether interventions may reduce the impact on the Applicant’s impairments and prevent the deterioration of functional capacity improvement, Dr Martin opined:[71]
In general, patients with osteoarthritis and chronic pain benefit from physiotherapy review to provide assessment, advice and graded exercise program. Muscle strengthening, aerobic activity, weight loss and stretching has been consistently shown to improve function, reduce disability and pain in osteoarthritis. For most patients, it would be appropriate to transition to self-management and active independent strategies after a period of physiotherapy and institution of a self-directed exercise program.
[71] R1, page 636.
Dr Martin was unable to comment on the likely trajectory of the impairments given his limited clinical contact with the Applicant.[72]
[72] R1, page 636.
Mr Fielke – occupational therapist
On 21 September 2023, the Applicant participated in an independent Functional Capacity Assessment (FCA) in his home with occupational therapist Mr Fielke. This assessment and the resultant report dated 26 September 2023 were arranged and funded by the Respondent.[73] Mr Fielke is a senior occupational therapist with over 30 years’ experience working in both the public and private sectors. His experience includes having worked in hospital orthopaedic and pain management clinical settings and an outpatient arthritis clinic.
[73] R1, pages 641-663.
In his report, Mr Fielke stated that the Applicant reported he was seeking access to the NDIS for functional impairments related to his diagnosis of osteoarthritis of the lumbar spine, cervical spine and bilateral hip joints.[74] Mr Fielke stated that the Applicant reported he was experiencing average symptoms on the day of the assessment.[75]
[74] R1, page 645.
[75] R1, page 659.
With regards to the Applicant’s range of movement, Mr Fielke documented that the Applicant displayed sufficient upper and lower range of movement to undertake most personal and domestic activities of daily living.[76] The Applicant reported he has significant difficulty arising from the floor due to hip and lower back pain and relies on furniture to support himself when arising from seated postures, however Mr Fielke noted that the Applicant’s lower limb range of movement was sufficient to adopt functional seated and standing postures.[77] Additionally, Mr Fielke reported that the Applicant was reluctant to flex his spine to reach items below knee height as this can aggravate his back pain.[78]
[76] R1, page 650.
[77] R1, page 650.
[78] R1, page 650.
Mr Fielke provided the following evidence with respect to the Applicant’s mobility:
(a)The Applicant reported he is able to mobilise without the use of assistive devices for up to 15 to 20 minutes. He then requires a rest period to manage his lower back and hip symptoms.[79]
[79] R1, page 660.
(b)He was observed to mobilise about his home environment without assistance or the use of aids. This was observed on level tiled, timber and carpeted surfaces and over one step. The Applicant reported he has less tolerance walking on uneven or sloping ground. He has some difficulties using numerous steps due to his hip and back pain but achieves this using a modified technique and support of handrails or other hand holds.[80] At the hearing, Mr Fielke stated he observed the Applicant stand up and move about the house independently in a steady but uncomfortable manner.
(c)He was independent using a modified technique transferring between sitting and standing (pushing or pulling on furniture).[81]
(d)He was observed to transfer on/off a dining chair and his toilet independently using a modified technique. He uses a left sided grabrail to facilitate his toilet transfers.[82]
(e)He demonstrated appropriate balance on level surfaces.[83]
(f)He reported being able to independently access and exit the shower.[84]
(g)He reported that he is unable to sustain kneeling or deep squat postures and has significant difficulties and back pain ascending from low heights.[85]
(h)He reported that he has difficulty standing for periods longer than 5 to 10 minutes due to lower back and hip discomfort.[86]
(i)He reported that he is able to drive for approximately 45 minutes before needing to exit his vehicle to manage his lower back and hip symptoms.[87]
(j)He can attend shopping and access the community independently. He uses self-pacing and self-management of symptoms by resting as required after 15 to 20 minutes.[88]
(k)He can assist with light cleaning tasks independently. He is unable to complete low level scrubbing and wiping due to back and hip pain.[89]
[80] R1, pages 660-661.
[81] R1, page 660.
[82] R1, page 660.
[83] R1, page 652.
[84] R1, page 653.
[85] R1, page 653.
[86] R1, page 653.
[87] R1, page 661.
[88] R1, page 657-661.
[89] R1, page 657.
Mr Fielke stated that there were no self-care tasks that the Applicant was unable to do without self-pacing, simple activity modification or the use of simple assistive equipment.[90] The Applicant requires his wife to assist him with dressing his lower limbs when his back or hip pain is excessively aggravated.[91] Mr Fielke expected he would be independent in completing this task with the use of simple, inexpensive, commonly used devices. At the hearing, Mr Fielke clarified such devices to include a long handled reacher, dressing stick, sock guard and long handled shoehorn. Mr Fielke explained that a dressing stick is commonly used by people experiencing difficulties with lower limb dressing due to mobility impairments relating to bending tasks. He went on to describe that this piece of equipment can be easily homemade. The Applicant also has some difficulty washing his lower limbs when his back pain is aggravated.[92]
[90] R1, page 662.
[91] R1, page 662.
[92] R1, page 656.
With regards to communication, Mr Fielke stated that the Applicant displayed adequate receptive and expressive verbal communication skills during the assessment.[93]
[93] R1, page 656.
No cognitive testing was undertaken during the FCA. Mr Fielke opined that objectively the Applicant displayed adequate cognition during the assessment by answering questions adequately and thoroughly.[94] The Applicant reported that has had increased difficulty learning new tasks since his strokes.[95] Mr Fielke considered the Applicant to have appropriate capacity for planning and organisation.[96]
[94] R1, page 654.
[95] R1, page 655.
[96] R1, page 655.
With regards to socialisation, Mr Fielke observed the Applicant to appropriately engage during the assessment.[97] He noted that the Applicant plays darts with friends on a regular basis and goes fishing when he is able.[98]
[97] R1, page 656.
[98] R1, page 658.

At the hearing the Applicant asked Mr Fielke if, in his opinion, osteoarthritis could progress to the point of more functional assistance being required in the future. In response, Mr Fielke explained that because osteoarthritis is a degenerative condition, it is possible that greater levels of assistance may be required over time.
CONSIDERATIONS OF CLAIMS AND EVIDENCE
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable?
As mentioned above, the Respondent accepts that the Applicant satisfies this requirement in relation to physical impairments arising from osteoarthritis. Having reviewed the various medical and radiological reports contained in the Joint Tender Bundle of documents, the Tribunal is satisfied with this position. However, the legislation requires the decision maker to consider the concept of impairment rather than conditions or diagnoses.[99]
[99] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [69].
The Act does not define the term impairment, but it is generally understood as involving a loss of, or damage to, a physical, sensory or mental function.[100] Relevantly, the NDIS Operational Guideline state as follows:
An impairment is a loss or significant change in at least one of:
·your body’s functions
·your body structure
·how you think and learn.
[100] Mulligan at [51].
Pain is not an impairment in of itself, but pain might be such that it limits particular bodily functions and therefore constitutes an impairment.[101]
[101] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47]-[48].
I am satisfied that the Applicant experiences mobility impairments related to his osteoarthritis and pain. The evidence he provided at the hearing was consistent with that provided by Mr Fielke from his assessment of the Applicant. The Applicant experiences difficulty getting into and out of chairs, bending, dressing his lower body, walking distances and exercising. Intermittently, his mobility is further restricted from his back and hip ‘seizing up’. The Tribunal has also taken into consideration the medical evidence provided by Dr De Silva that the Applicant’s osteoarthritis limits his joint and body movements.[102] The Tribunal accepts that the inflammation between affected joints impairs his movement and causes pain.
[102] R1, page 626.
Considered overall, I am satisfied that the Applicant has physical impairments which causes some disability. I am therefore satisfied that he has a disability that is attributable to physical impairments and that the requirements of paragraph 24(1)(a) of the NDIS Act are met.
Are the Applicant’s impairments permanent or likely to be permanent?
The Respondent accepts that the Applicant’s physical impairments arising from osteoarthritis are permanent, or likely to be permanent, for the purposes of paragraph 24(1)(b) of the NDIS Act.[103]
[103] R2, page 4 at [26].
I accept the medical evidence that records the presence of osteoarthritis in the Applicant’s knees from as early as 2010[104] and degenerative spinal disc disease and facet joint degenerative changes since at least 2012.[105] The Applicant has been treated with various pain relief medications over the years and physiotherapy. The Applicant has been reviewed by a rheumatologist and pain specialist.
[104] R1, T Documents, T53, pages 312-313.
[105] R1, T Documents, T63, page 402.
Dr De Silva’s opinion is that the Applicant’s osteoarthritis is a degenerative condition for which there is no specific cure.[106] Medication treatments to manage symptoms have ultimately not been effective and surgical intervention is not indicated due to the widespread nature of his symptoms and the associated surgical risks relating to his comorbid medical conditions.[107] Physiotherapy may help manage symptoms but will not cure the condition.[108]
[106] R1, page 626.
[107] R1, page 626.
[108] R1, page 626.
Having regard to the medical evidence, the Tribunal is satisfied that the requirements of paragraph 24(1)(b) of the NDIS Act are met.
Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
To satisfy the criteria in paragraph 24(1)(c) of the NDIS Act, the Applicant must demonstrate that his impairments result in a substantially reduced functional capacity to undertake one or more of the following six activities:
(i)Communication;
(ii)Social interaction;
(iii)Learning;
(iv)Mobility;
(v)Self-care; and
(vi)Self-management.
It is enough for an individual to have substantially reduced functional capacity in relation to just one of the stated activities to meet the criteria in paragraph 24(1)(c).
Rule 5.8 of the Access Rules represent deeming provisions that must be applied when the Tribunal is considering whether the Applicant’s impairment results in a ‘substantially reduced functional capacity’ and provide 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.
In Mulligan, Mortimer J held that the legislation requires ‘a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.’[109] With respect to Rule 5.8, Mortimer J explained that if an Applicant does not fall within the deeming effects of the rule, ‘the statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.’[110]
[109] Mulligan at [55].
[110] Mulligan at [77].
In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) the Full Court of the Federal Court made clear that it is the assessment with respect to the bundle of tasks and actions within an activity which is relevant, rather than equating impairment to a single task within the activity.[111] The full court explained further that:[112]
…a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
[111] Foster at [65].
[112] Foster at [88].
The Operational Guidelines state:
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
·Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
·Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
·Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
(Original emphasis.)
However, as explained in Foster:[113]
…Guidelines are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner... Rather, they provide non-exclusive content to the range of “tasks and actions” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.
[113] Foster at [62].
Communication
The Operational Guideline with respect to communication states:
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.
The Applicant did not identify any specific difficulties with communication. The evidence provided by the Applicant at the hearing regarding this domain is summarised as follows:
(a)He communicates regularly with his wife and son.
(b)He communicates with his GP and other health providers without difficulty or assistance.
(c)He communicates face to face on a weekly basis with friends when he attends a local sports club to play darts and intermittently through messaging on a group chat platform.
(d)He can communicate in writing.
The Applicant was able to communicate effectively and coherently at the hearing. He responded to questions in a considered manner and was able to participate over approximately two hours of questioning from the Tribunal and Counsel for the Respondent.
Dr De Silva did not indicate any impact from the Applicant’s disability on his communication functioning.[114]
[114] R1, T Documents, T41, page 187.
I am satisfied that the Applicant does not experience any significant difficulties with communication tasks.
Accordingly, the Tribunal is not satisfied that the Applicant meets the criteria in subparagraph 24(c)(i) of the NDIS Act.
Social Interaction
The Operational Guideline with respect to social interaction states:
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.
At the hearing the Applicant provided evidence about his functional capacity with regards to social interaction summarised as follows:
(a)The Applicant can interact socially with his wife and son on a daily basis, although his opportunity or motivation to do so is likely reduced on bad days.
(b)He attends a weekly catch up with a group of about 16 to 18 people to play darts. He enjoys this social interaction, and he denied any difficulties interacting with any other members of the community when asked directly. He intermittently engages with his social group by way of a group chat using his phone.
(c)He makes and attends his medical and allied health appointments on his own and can engage in this process.
(d)He did not describe any difficulties with his behaviour or emotions in social settings.
In the FCA, Mr Fielke noted that the Applicant engaged appropriately during the assessment.[115]
[115] R1, page 656.
Dr De Silva opined that, due to his mobility issues, the Applicant’s confidence and ability to socialise with family, friends and the general community has been significantly affected.[116] The concept of socialisation described in the Guidelines is directed more to an individual’s social skills and less to the circumstances surrounding the opportunity to socialise as described by Dr De Silva. While I accept that the Applicant may at times have to reduce his social interactions due to exacerbations of pain and restricted mobility, the evidence is that he nonetheless does engage, on a fairly regular basis, with his immediate family, group of friends and the community. I am satisfied that he possesses the social skills to make and keep friends and maintain relationships with members of his immediate family.
[116] R1, T Documents, T41, page 187.
Considered overall, I am satisfied that the Applicant’s physical impairments do not prevent him from participating appropriately and effectively in social interaction, nor do they affect his ability to make and keep friends or behave appropriately in social settings.
Accordingly, the Tribunal not satisfied that the Applicant meets the criteria in subparagraph 24(c)(ii) of the NDIS Act.
Learning
The Operational Guideline with respect to learning states:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Dr De Silva’s opinion is that due to the Applicant’s debilitating restriction on his body movements and the pain he experiences, his ability to cope with processing and retaining information is affected.[117] Dr De Silva opined that the Applicant needs prompting to retain information and engage in new skills. The basis for this opinion is not expanded upon. There is no information before me to indicate that the Applicant has undertaken any cognitive screening tests or formal cognitive assessments to ascertain whether he has any deficits in his capacity to learn, understand and remember new things.
[117] R1, T Documents, T 41, pages 187-189.
The Applicant’s evidence is that following a stroke in 2014, it takes longer for him to recall information and learn new things. Despite this subjective experience regarding his capacity to learn, I accept the Applicant’s oral evidence that he has not required the assistance of others to understand information. I accept his evidence that he has independently been able to download and learn how to play online memory games and is able to use his computer to search information on the internet. The Applicant has been able to learn and implement a home exercise program when he was regularly engaging with a physiotherapist. He can use online navigation applications to determine the best route if he needs to drive somewhere new.
Mr Fielke’s impression was that the Applicant displayed adequate cognition during the functional capacity assessment as demonstrated by his ability to answer questions adequately and thoroughly.[118]
[118] R1, page 656.
Having considered the evidence, the Tribunal does not agree with the view of Dr De Silva that the Applicant requires prompting to retain information and learn new skills. While it can be difficult for people to concentrate, process and retain information during acute exacerbations of pain, the evidence does not support a position of the Applicant’s impairments causing a reduction in his functional capacity for learning that approaches the threshold of being substantially affected.
Accordingly, the Tribunal is not satisfied that the Applicant meets the criteria in subparagraph 24(c)(iii) of the NDIS Act.
Mobility
The Operational Guideline with respect to mobility states:
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.
The Respondent contends that the evidence does not demonstrate that the Applicant is unable to participate effectively or completely in mobility or that the Applicant otherwise has a substantially reduced functional capacity in this activity.[119]
[119] R2, page 5 at [32.3].
Paragraph 24(1)(c)(iv) of the NDIS Act requires that there must be a substantially reduced functional capacity in the activity of mobility because of the Applicant’s impairments. Such threshold requirements have previously been considered by the Tribunal as to be ‘relatively modest’.[120] A person has functional capacity if they can, for example, move about their home, get in and out of beds and chairs, leave home and mobilise in the community.[121] The Tribunal has previously found that there was no particular distance specified in the Guideline as defining a substantially reduced functional capacity in mobility, but it ‘seems reasonable to suggest that a person who can travel 50 m … has the capacity to do the things referred to in the Guideline’.[122]
[120] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [104].
[121] MRLK and National Disability Insurance Agency [2021] AATA 3896 (MRLK) at [150]-[154]; Madelaine at [104]-[106]; see also Holmes and National Disability Insurance Agency [2017] AATA 2750 (Holmes) at [75].
[122] Madelaine at [106]; Holmes at [76]; MHZQ and National Disability Insurance Agency [2019] AATA 810 at [78]-[80].
While I accept that the Applicant has a reduction in his functional capacity to mobilise, for the reasons provided below I am not satisfied that the evidence demonstrates overall that his impairments lead to a substantially reduced functional capacity in undertaking this activity.
The Applicant’s evidence is that his mobility varies from good days to bad days, with the frequency of bad days being somewhat dependent on the weather. On good days he can walk unassisted for about 20 minutes before needing to stop, while on bad days he has difficulty walking from his bedroom to the kitchen.
The Applicant generally mobilises around the house at a slower pace due to his joint pain and stiffness but can do so without assistive equipment or the assistance of others. He can attend weekly trips to the shopping centre and to play darts at his local sports club. He paces himself when accessing the community and takes a rest to manage his pain after about 15 to 20 minutes. The Applicant uses a modified technique to get out of chairs by pushing up on adjacent furniture and has raised the height of his bed so that he can transfer without assistance. He has installed handrails in the toilet and shower to assist with transfers but prior to this was able to do so using a modified technique (pushing off the toilet seat) or commonly used items (a plastic chair in the shower). He can get into and out of his car and drive for up to 45 minutes on a good day. The Applicant was able to attend the Tribunal hearing in person by catching a train and walking from the central city train station, taking approximately 30 minutes and having to stop for a rest midway.
During flare ups of his condition, the Applicant struggles with lower limb dressing and usually requires his wife’s assistance. He also usually requires his wife’s assistance to put on his shoes and socks. Due to his difficulty bending, he uses a long handled reacher to access low lying items or will ask for his wife’s assistance. He can access and use items above waist height such as cupboards, stove top, microwave, washing machine and tumble dryer. The Applicant reported to Mr Fielke that he has difficulties climbing stairs due to his hip and back pain but can do this if required by using a modified technique and support of handrails.[123] Household cleaning tasks have generally always been completed by the Applicant’s wife. He finds using the vacuum cleaner aggravates his back pain and cleaning tasks at lower levels are difficult due to the limitations in his ability to bend his back or squat, however he can sweep the floor by taking his time, launder clothes using the washing machine and tumble dryer, assist with bed making if he has to and prepare simple meals and snacks.
[123] R1, page 660.

Dr De Silva’s stated that the Applicant’s osteoarthritis causes a substantially reduced ability to walk, climb stairs, get in and out of bed and chairs, drive and participate in daily living tasks.[124] Dr De Silva further opined that the Applicant’s wife needs to assist him with getting into and out of bed and chairs, using stairs and in dressing and putting on his shoes. Having considered what the Applicant told the Tribunal at the hearing about what he can and cannot do and the functional capacity assessment of Mr Fielke, I have not formed the same view as Dr De Silva.
[124] R1, T Documents, T41, pages 186-188.
While the Applicant requires his wife’s assistance to put on his shoes and at times requires her assistance with lower limb dressing, I am satisfied that he can, for the most part, mobilise independently using pacing, modified techniques or by using commonly used equipment (such as handrails, a long handled reacher and by pushing up on a side table to get out of a chair). In Foster, the Full Court of the Federal Court determined that it is the assessment with respect to the bundle of tasks and actions within an activity which is relevant, rather than equating impairment to a single task within the activity.[125] Taking into account the guidance in Foster, the activity to be assessed is mobility as a whole, not a specific task or action within mobility. While I accept the Applicant has limitations in his capacity to mobilise and that this capacity can fluctuate dependent on the severity of his symptoms of pain and stiffness, I am not satisfied his impairments cause him to be unable to participate effectively or completely in the activity of mobility or to perform tasks or actions to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (Access Rule 5.8(a)). Considering the effect of the Applicant’s impairments on his mobility as a whole, I am not satisfied that he usually requires the assistance from other people (Access Rule 5.8(b)). Based on the evidence, I am also satisfied that the Applicant is not assisted by Access Rule 5.8(c).
[125] Foster at [65].
On the basis that the deeming operation of Access Rule 5.8 is not enlivened in this case, the Tribunal must still consider whether the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
The Tribunal accepts that the Applicant mobilises with pain and his ability to mobilise is consequently slower, however he is able to perform most mobility tasks either independently, in a modified fashion, with the use of the commonly used items or with periodic informal support. I am not satisfied that the Applicant’s impairments result in substantially reduced functional capacity in mobility with regards to the relatively high threshold requirement.
Accordingly, the Tribunal is not satisfied that the Applicant meets the criteria in subparagraph 24(c)(iv) of the NDIS Act.
Self-care
The Operational Guideline with respect to self-care states:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
The evidence establishes that other than requiring assistance to put on his shoes and intermittently with lower limb dressing, the Applicant is independent with regards to tasks that comprise the activity of self-care. He can shower and toilet himself independently with the assistance of handrails for transfers. He can attend to his grooming, oral care, eating and drinking without assistance. The Applicant has some difficulty washing his lower limbs when his back pain is aggravated. He regularly engages with his general practitioner for his health care needs and monitoring and is compliant with his prescribed medications.
Mr Fielke stated that there were no self-care tasks that the Applicant was unable to do without self-pacing, simple activity modification, or the use of simple assistive equipment. With regards to lower limb dressing, Mr Fielke predicted the Applicant would be independent in completing this task with the use of simple devices such as a long handled reacher, dressing stick, sock guard and long handled shoehorn. I have considered the indicia formulated by Senior Member Cameron in Rooney and National Disability Insurance Agency [2021] AATA 3523 (Rooney)[126] and the conclusion that the threshold contemplated by Rule 5.8(a) is a high one.[127] I am satisfied that a long handled reacher, dressing stick, sock guard and long handled shoehorn are commonly used items for the purpose of Access Rule 5.8(a). I am persuaded by the evidence of Mr Fielke that such items are generally accessible, simple to use and relatively inexpensive.
[126] Rooney at [26]-[27].
[127] Rooney at [28].
This contemporaneous evidence elicited at the hearing is not consistent with Dr De Silva’s opinion that the Applicant is unable to effectively complete all aspects of his self-care tasks or that he requires assistance with personal care and grooming. The Tribunal gives less weight to Dr De Silva’s evidence in this regard.
While I acknowledge that the Applicant usually requires his wife’s assistance to put on shoes and from time to time with lower limb dressing, in considering Access Rule 5.8, I am satisfied that the Applicant is able to perform and complete most actions required in the bundle of tasks identified in the Operational Guideline as comprising self-care, and does not usually require the assistance from other people to perform such tasks. Accordingly, the Tribunal finds that the deeming effects of Access Rule 5.8(b) and (c) are not enlivened.
The Tribunal must still consider whether the Applicant’s impairments result in a substantially reduced functional capacity in relation to self-care.
In Madelaine, the Tribunal considered that having 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’.[128] The Applicant may require assistance from time to time, more so during acute exacerbations of pain and stiffness, or resort to the use of commonly used items to assist with some aspects of self-care, however having considered the evidence overall, I am not persuaded that there are significant gaps in the Applicant’s functional capacity to participate in the activity of self-care.
[128] Madelaine at [121].
Accordingly, the Tribunal not satisfied that the Applicant meets the criteria in subparagraph 24(c)(v) of the NDIS Act.
Self-management
The Operational Guideline with respect to self-management states:
Self-management – 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.
Dr De Silvas’s opinion is that the Applicant is unable to concentrate and undertake personal management needs as his focus each day is in coping with his restricted body movements and associated pain.[129] Dr De Silva states that the Applicant’s wife manages all household, financial and daily living tasks for the Applicant.
[129] R1, T Documents, T41, pages 187-191.
Since having a stroke, the Applicant reports experiencing problems with his memory in terms of his general recall of information being slower. There is no evidence of the Applicant having had any cognitive or neuropsychological assessment.
The Applicant’s evidence is that he can independently make and attend his regular medical appointments. He is compliant with his prescribed medications and uses an application on his phone to ensure these are delivered on time. While his wife manages most of the household finances, the Applicant stated he could do this task if he had to. He assists with organising his son’s medical appointments. As the only holder of a drivers licence in the household, he undertakes the necessary driving for the family. He is able to use a navigation application to plan new journeys and determine the duration required factoring in his necessary rest breaks along the way.
The Applicant has been able to implement recommended treatment and management protocols given to him by his health care providers. He was able to plan his trip by train to the Tribunal for his hearing and home again, a process that was new to him.
The Applicant’s evidence, which the Tribunal accepts, is not consistent with the level of impairment identified by Dr De Silva in the domain of self-management. I afford greater weight to the contemporaneous evidence provided by the Applicant at the hearing.
Considered overall, while I accept that during exacerbations of pain symptoms the Applicant’s capacity to engage in day to day self-management tasks may be restricted, I am not satisfied that his impairments result in a reduced functional capacity of the bundle tasks that comprise the activity of self-management to the degree that meets the requisite threshold of being substantially affected.
Accordingly, the Tribunal not satisfied that the Applicant meets the criteria in subparagraph 24(c)(vi) of the NDIS Act.
Does the Applicant satisfy the disability requirements of Section 24?
For the reasons given above, the Tribunal has found that the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the six specified activities as required by paragraph 24(1)(c) of the NDIS Act. As paragraph 24(1)(c) of the NDIS Act is a mandatory provision, it is not necessary for the Tribunal to consider the remaining requirements of subsection 24(1). Accordingly, he does not meet the disability requirements.
Does the Applicant satisfy the early intervention requirements of Section 25?
As the Applicant has not met the disability requirements under section 24, I will next consider whether he meets the early intervention requirements.
Section 25 of the NDIS Act sets out the early intervention requirements. The Operational Guideline with respect to early intervention states:
We need to decide that getting early intervention supports means you’ll likely need fewer disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
·addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
·preventing your functional capacity from getting worse
·improving your functional capacity
·supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
·how your impairment might change over time
·how long you’ve had your impairment
·if there’s been a significant change to your impairment
·if your needs are likely to change soon, such as if you’re finishing school.
The Explanatory Memorandum to the National Disability Insurance Scheme Bill 2012 (Cth) (the Bill) states:
Clause 25 [of the Bill] sets out the early intervention requirements a person must satisfy, as an alternative to satisfying the disability requirements, in order to become a participant in the NDIS launch. This clause recognises that a person may need support to help minimise the impact of a disability from its earliest appearance, and that the provision of support may improve the person's functioning or prevent the progression of their disability over their lifetime.
(Tribunal emphasis.)
Rule 2.5(b) of the Access Rules outlines the rationale for early intervention as an alternative pathway to access the NDIS:
alternatively, a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. …
Specifically with regards to the early intervention requirements, the Access Rules provide as follows:
6.1A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
6.2      However, 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 (see paragraphs 6.4 to 6.7); or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); 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 (see paragraphs 6.8 to 6.11); 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 (see paragraphs 6.8 to 6.11).
6.3This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, in order to meet the early intervention requirements, all of the requirements in that paragraph need to be satisfied.
…
Deciding whether provision of early intervention supports is likely to benefit the person
6.8Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Where evidence is required
6.9In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person's impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
(Original emphasis. Notes omitted.)
The Respondent submits that the Applicant accepted that he had a diagnosis of osteoarthritis and was experiencing chronic pain since at least 2017. They contend that there is a lack of evidence as to the likely trajectory of the Applicant’s impairments in connection with these conditions. The Respondent further argues that the Applicant is seeking access for physiotherapy treatment which is already provided for by the health system under an annual chronic disease management plan obtained through his general practitioner. The Respondent acknowledges that the Applicant is seeking more physiotherapy sessions than he can access through the health system but contends that the NDIS was not intended to respond to shortfalls in these mainstream services.
The Applicant submits that he meets the early intervention criteria for the following reasons:[130]
(a)It is known that osteoarthritis only gets worse with time and that if he does not start regular physiotherapy now, he will need walking aids in the future. Consequently, as his fitness level deteriorates his diabetes will also worsen.
(b)As his degenerative condition worsens over time, physiotherapy will lessen the impact from his mobility impairments.
(c)Physiotherapy will help stop joint stiffness and reduce pain thus enabling maintenance of his general fitness which will improve his functional capacity.
(d)Dr Martin wrote that muscle strengthening, aerobic activity, weight loss and stretching have been shown to improve function, reduce disability and reduce pain in osteoarthritis.
(e)The evidence of Dr De Silva was that while the cause of the impairment is degenerative in nature and that the recommended treatment will not cure or improve the degeneration, it may assist with symptom control and quality of life.
(f)The Applicant has been told by providers that without NDIS funding, he can only access a maximum of five physiotherapy treatments per year through the health system.
(g)In his closing submission, the Applicant referred to Mr Fielke’s evidence at the hearing which stated that because osteoarthritis is a degenerative condition, the Applicant may require greater levels of functional assistance over time.
[130] A1.
On the basis of the findings in relation to paragraph 24(1)(b) above, the Tribunal is satisfied that the Applicant has a permanent physical impairment and meets the requirements of subparagraph 25(1)(a)(i) of the NDIS Act.
However, having considered the evidence before me, I accept the Respondent’s position with regards to the Applicant not having met all the section 25 early intervention criteria.
In determining whether the Applicant satisfies paragraphs 25(1)(b) and 25(1)(c) of the NDIS Act, the Tribunal needs to consider the likely trajectory and impact of the Applicant’s impairment over time (Access Rule 6.9(a)). The evidence is that the Applicant has been diagnosed with osteoarthritis and had been experiencing disability relating to this condition for at least 6 years at the time of his original application in 2023.[131] There is further medical evidence that establishes the Applicant received a diagnosis of osteoarthritis with associated pain as early as 2010.[132] In 2012 following a work related injury, he was experiencing lower back pain and radiating leg pain with radiological evidence on CT and MRI of lower lumbar disc degeneration.[133] In subsection 25(1) of the NDIS Act there is a notation that in certain circumstances, a person with a degenerative condition could meet the early intervention requirements, however, the evidence does not support a conclusion that the Applicant’s impairments are at an early stage of their trajectory to qualify for support under this provision.
[131] R1, T Documents, T41, page 182.
[132] R1, T Documents, T53, pages 312-313.
[133] R1, T Documents, T64, page 485; T63, pages 402-403.
While Dr De Silva had previously indicated that early intervention supports would likely reduce the Applicant’s future support needs,[134] she most recently indicates that early intervention supports are not likely to achieve this.[135] Furthermore, Dr De Silva states that the cause of the Applicant’s impairments is degenerative in nature and that recommended treatment would not cure or improve the degeneration.[136] Mr Mulrooney provided his opinion that ongoing physiotherapy would achieve significant improvement of the Applicant’s symptoms and that without such support the Applicant’s degenerative condition will progress faster and require more supports in the future. However, the evidence also establishes that when the Applicant was receiving regular physiotherapy, a break in treatment resulted in a return of symptoms and functional impairment almost to the level of his original presentation.[137] While I am satisfied that physiotherapy can attenuate the Applicant’s pain symptoms and provide improvement in his mobility functioning, at least temporarily, the Applicant’s condition is degenerative and it is more likely that his impairments will continue to worsen over time. The Tribunal cannot be satisfied that the provision of early intervention supports is likely to reduce the Applicant’s future needs for supports in relation to his disability (paragraph 25(1)(b)).
[134] R1, T Documents, T30, page 113.
[135] R1, T Documents, T41, page 184.
[136] R1, page 638.
[137] R1, T Documents, T40, page 167; T41, page 183.

As the early intervention requirements of subsection 25(1) are cumulative, the Tribunal does not need to consider paragraph 25(1)(c) of the NDIS Act. Nevertheless, I will consider subsection 25(3) of the NDIS Act[138] in case I am mistaken about paragraph 25(1)(b).
[138] s 25 of the NDIS Act before the commencement of the Amending Act on 3 October 2024.
Subsection 25(3) provides that the early intervention requirements are not met if the support is more appropriately funded through other general systems of service delivery. The Tribunal considers that the support of physiotherapy as recommended by Dr De Silva and Mr Mulrooney has primarily been framed as a form of treatment for the Applicant’s osteoarthritis symptoms[139] and to slow the progression of his osteoarthritis over the longer term.[140] The National Disability Insurance Scheme (Supports for Participants) Rules 2013 provide in Schedule 1 considerations relating to whether supports are most appropriately funded through the NDIS and relevantly with respect to health state at 7.5:
7.5 The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
…
[139] R1, page 638.
[140] R1, T Documents, T40, pages 167-168.
The Applicant has been able to access this form of treatment under a chronic disease management plan through the health system. I acknowledge that this plan provides a maximum of 5 sessions per year, an amount significantly less than what the Applicant is seeking. I also acknowledge that the amount of physiotherapy provided through the healthcare system may be inadequate for the Applicant’s needs. Nevertheless, the NDIS was not established to fill the gap in clinical services meant to be provided through the health system. In Young and National Disability Insurance Agency [2014] AATA 401 the Tribunal noted at [41]:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS. …
The Tribunal concludes that the physiotherapy the Applicant is seeking is most appropriately funded through the health system.
CONCLUSION

The Tribunal has found, on the totality of the evidence, that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake the prescribed activities as required under paragraph 24(1)(c) of the NDIS Act. Furthermore, the Tribunal finds that the Applicant does not meet the early intervention requirements required under paragraph 25(1)(b) and subsection 25(3) of the NDIS Act.
I understand that this will be a difficult decision for the Applicant to receive. In reaching this conclusion, I do not wish to suggest that the Applicant is not suffering from impairment due to his osteoarthritis and chronic pain. I accept that he does. My finding is based on the requisite legislative criteria for access to the NDIS having not been met at this time.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

I certify that the preceding 173 (One hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of General Member K Dodd

..................[Sgd]..............................
Associate
Dated: 10 December 2024

Date(s) of hearing: 25 and 28 October 2024

Applicant: Self-represented

Counsel for the Respondent: Ms J Flinn

Solicitors for the Respondent: Ms E Hourigan

Date(s) of hearing:	25 and 28 October 2024
Applicant:	Self-represented
Counsel for the Respondent:	Ms J Flinn
Solicitors for the Respondent:	Ms E Hourigan