Whitington and National Disability Insurance Agency
[2024] AATA 554
•2 April 2024
Whitington and National Disability Insurance Agency [2024] AATA 554 (2 April 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/3572
Re:Ms Dianne Whitington
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member J Collins
Date:2 April 2024
Place:Brisbane
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
........................[SGD]......................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria - s24 NDIS Act – s25 NDIS Act – whether applicant meets disability requirements – whether applicant meets the early intervention requirements- degenerative spine disease, peripheral axonal sensory motor neuropathy, ankylosing spondylitis - bladder dysfunction – likely permanency - whether impairments substantially reduce functional capacity.
Legislation
Administrative Appeals Tribunal Act 1975(Cth) section 43
National Disability Insurance Scheme Act 2013 (Cth) sections 3, 4, 21, 22, 23, 24, 25, 27, 100, 103, 209National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rules 2.5, 5.4, 5.5, 5.6, 5.7, 5.8, 6.1
Cases
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Constructions Commissions (The Bay Street Appeal) FCAFC 192
Coventry and National Disability Insurance Agency [2024] AATA 259
Galea and National Disability Insurance Agency [2022] AATA 2263
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
Jalaudin and National Disability Insurance Agency [2023] AATA 448
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Power and National Disability Insurance Agency [2023] AATA 3357
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Rooney and National Disability Insurance AgencySecondary Materials
NDIS - Applying to the NDIS access guidelines, as of 1 February 2024
NDIS - Assistive technology operational guidelines, as of 16 February 2023
Productivity Commission Inquiry Report: Disability Care and Support, Report No 54.
REASONS FOR DECISION
Senior Member J Collins
2 April 2024
INTRODUCTION
Ms Dianne Whitington is a 67-year-old woman who lives alone. She has diagnoses of Degenerative Spine Disease (‘DSD’), Peripheral Axonal Sensory Motor Neuropathy (‘PASMN’), Ankylosing Spondylitis (‘AS’) and bladder dysfunction.
In November 2021 Ms Whitington applied to the National Disability Insurance Agency (‘the Agency’) for access to the National Disability Insurance Scheme (‘the scheme’) so that she could receive supports.
In Ms Whitington’s NDIS Access Request form her General Practitioner, Dr Russell Shute referred to the following disabilities:[1]
[1] Document 39: T Documents, T15.
·Degenerative joint disease; and
·Ankylosing spondylitis.
Ms Whitington also identified the following disabilities in her NDIS Access request form: [2]
[2] Document 39: T Documents, T15.
·Long standing severe joint disease;
·Ruptures right Achilles tendon;
·Nerve damage to legs; and
·Acute keratoconjunctivitis.
That application was refused by the Agency at first instance and again upon internal review. Ms Whitington has now applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of that subsequent decision (‘the decision under review’).[3]
[3]Document 39: T Documents, Section 103, NDIS Act.
For the reasons set out below, the Tribunal affirms the decision under review.
BACKGROUND TO THE APPLICATION TO THE AGENCY
On 1 April 2022 the Agency affirmed its original decision to refuse Ms Whitington access to the scheme.
In affirming its original decision, the Agency was satisfied that Ms Whitington had satisfied the age and residence requirements[4] but not the disability requirements[5] or the early intervention requirements.[6]
[4] Section 22, NDIS Act.
[5] Section 24, NDIS Act.
[6] Section 25, NDIS Act.
ISSUES
The issues before the Tribunal are whether Ms Whitington meets:
·the disability requirements under section 24 of the NDIS Act, or
·the early intervention requirements under section 25 of the NDIS Act.
Determination of these issues is made pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’), and several other statutory instruments made under it.[7]
[7] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
At the hearing Ms Whitington was self-represented. The Agency was represented by Ms Josephine Batiste of Counsel instructed by Mr Christopher Duluk, Solicitor HWL Ebsworth Lawyers.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
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).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(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..
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to dealing with the assessment of whether a person meets the disability requirements or the early intervention requirements. The relevant guidelines in this review are the NDIS - Applying to the NDIS guidelines (‘the Access Guidelines’).[8] There is no power conferred by the NDIS Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[10] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:[12]
[8] ourguidelines.ndis.gov.au: Applying to the NDIS.
[9] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[10] [1979] 24 ALR 577 at [590].
[11] [2018] FCA 1229.
[12] Ibid at [171].
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it …’
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Whitington meets the disability requirements or the early intervention requirements.
Whether Ms Whitington meets the disability requirements, or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[13] with a relatively high degree of precision and be positively satisfied[14] that Ms Whitington meets either the disability requirements or the early intervention requirements.
[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[14] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
MS WHITINGTON’S POSITION
At the time of the hearing, Ms Whitington contended that she met both the disability requirements and the early intervention requirements. She maintained also that her disability that was attributable to the impairments that arose as a consequence of her diagnoses of DSD, PASMN, AS and bladder dysfunction.
THE AGENCY’S POSITION
The Agency has accepted that Ms Whitington meets the criteria in:[15]
[15] Document 42: Respondent’s Statement of Facts, Issues and Contentions dated 8 December 2023 at [14].
·subsections 24(1)(a) and 24(1)(d) of the NDIS Act in relation to impairments attributable to DSD, PASMN, AS and bladder dysfunction; and
·subsection 24(1)(b) in relation to DSD, PASMN and AK.
The Agency’s dispute in relation to the disability requirements was confined to whether:[16]
[16] Document 42 at [15].
·Ms Whitington’s impairments arising from her bladder dysfunction are permanent pursuant to subsection 24(1)(b) of the NDIS Act;
·Ms Whitington’s impairments result in a substantially reduced functional capacity for her to undertake any one or more of the activities referred to in subsection 24(1)(c) of the NDIS Act; and
·Ms Whitington is likely to require support under the scheme for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.
The Agency’s dispute in relation of the early intervention requirements was confined to whether:[17]
[17] Document 42 at [13]
·Early intervention supports would benefit Ms Whitington by reducing her future needs for support in relation to her disability as referred to in subsection 25(1)(b); and
·The provision of early intervention supports would be likely to benefit Ms Whitington in the areas identified in subsection 25(1)(c); and
·Early intervention supports are not most appropriately funded through the scheme, but rather through other general systems of service delivery or support services as referred to in subsection 25(3) of the NDIS Act.
SECTION 24: THE DISABILITY REQUIREMENTS
Subsection 24(1(a): Does Ms Whitington have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychosocial disability?
The Agency accepts that Ms Whitington has a disability attributable to physical impairments arising as a consequence of her DSD, PASMN, AS and bladder dysfunction.
The Agency refers to the evidence which identifies the following impairments:[18]
[18] Document 42 at [35].
·degenerative low back pain;
·reduced strength and sensation in Ms Whitington’s feet and legs; and
·difficulty voiding, particularly at night.
26.Based on the evidence I am satisfied that section 24(1)(a) is satisfied with respect to DSD, PASMN, AS and bladder dysfunction.
Subsection 24(1(b): Are Ms Whitington’s impairments permanent or likely to be permanent?
The Access Rules provide guidance about when an impairment is permanent or likely to be permanent for the purposes of subsection 24(1)(b) of the NDIS Act. Rules 5.4 to 5.7 provide as follows:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Degenerative Spinal Disease (DSD)
The Agency acknowledges that Ms Whitington has undergone facet joint injections and multiple bilateral facet denervation procedures with Dr David Hall, Spinal Surgeon. Dr Hall has treated Ms Whitington in regard to her degenerative low back pain since 2001 and reported that facet denervation ‘has been unsuccessful in alleviating Ms Whitington’s symptoms, which are ongoing’, and ‘in view of the poor response to interventions, no further intervention has been recommended.’[19]
[19] Document 23: Letter of Dr David Hall dated 22 March 2023.
Dr Hall considered that 'there is no further intervention and in particular no open surgery that is appropriate in managing her condition’ and that treatment of Ms Whitington’s symptoms is a matter of Ms Whitington managing her pain and staying as physically active as possible.
Peripheral Axonal Sensory Motor Neuropathy (PASMN)
Dr Hall reported that he 'cannot see any place for further surgical intervention in relation to her ongoing symptoms. Nor is there any place for a further facet denervation', noting that Ms Whitington was already undertaking regular physiotherapy and hydrotherapy and he did not recommend any further intervention at that time.[20]
[20] Document 45: Letter of Dr David Hall dated 5 July 2022.
Dr Martin Robinson, Neurologist stated 'she has an axonal sensory polyneuropathy and that it is unlikely that any treatment will make a difference.'[21] Further, that whilst Ms Whitington could consider further tests such as a nerve biopsy he considered 'it will ultimately not show any treatable cause.'
[21] Document 48: Letter of Dr Martin Robinson dated 4 August 2020.
In August 2022 Dr Eliza Pontifex, Rheumatologist referred Ms Whitington to Dr Richard Pope, Orthopaedic Surgeon stating 'I have no more medical options up my sleeve.[22]
[22] Document 46: Handwritten note of Dr Eliza Pontifex dated 9 August 2022.
Ankylosing Spondylitis
Dr Eliza Pontifex stated that Ms Whitington had adhered to physical therapies including physiotherapy and hydrotherapy for 'at least the last ten years' which had helped her to maintain physical function but had not been able to prevent significant impairment.[23]
[23] Document 24: Report of Dr Eliza Pontifex dated 1 May 2023, page 2.
Dr Pontifex also stated Ms Whitington has trialled disease-modifying therapies over the years however the therapies trialled ‘were generally ineffective and/or poorly tolerated’. Further, that the trial of a variety of pharmacological treatments had not led to any changes in Ms Whitington’s musculoskeletal symptoms and that her impairments in this regard 'overwhelmingly persist'.
Dr Pontifex’s opinion is that she does ‘not expect that there will be any significant improvement in her musculoskeletal impairments' which she identifies as including Ms Whitington’s degenerative spine and ankylosing spondylitis.[24]
[24] Document 24, page 3.
In correspondence dated 12 October 2023 Dr Pontifex confirmed that Janus Kinase (‘JAK’) inhibitors were not a treatment option for Ms Whitington on the basis that this medication is best avoided in individuals over the age of 65 with cardiovascular risk factors.[25]
[25] Document 46: Handwritten note of Dr Eliza Pontifex dated 12 October 2023.
The Agency accepts that the evidence before the Tribunal suggests that there are currently no other available or appropriate evidence-based clinical, medical or other treatments likely to remedy Ms Whitington’s impairments arising from DSD, PASMN and AS. This concession is reasonable and proper.
I am satisfied that the impairments arising from these conditions are permanent for which there is no cure or further beneficial treatment.
Subsection 24(1)(b) is satisfied with respect to DSD, PASMN and AS.
Bladder dysfunction
The Agency submits that Ms Whitington’s impairments arising from bladder dysfunction are not permanent for the purposes of subsection 24(1)(b). In this regard the Agency relies on Rule 5.4 of the NDIS Rules and the requirement that an impairment is permanent ‘only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’.[26]
[26] Document 42 at [41]-[42].
The interpretation of Rule 5.4 was considered by Mortimer J in National Disability Insurance Agency v Davis as follows:[27]
[27] [2022] FCA 1002 at [137]-[139].
‘As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.
The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
adjective 1. suitable or ready for use; at hand; of use or service …
Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access.’
(Tribunal emphasis)
Mortimer J also considered that the word ‘remedy’ should be understood to mean more than just ‘relieve or improve’. Rather correctly understood the word ‘remedy’ refers to ‘something approaching a removal or cure of the impairment.’[28]
[28] Davis at [136].
Ms Whitington’s evidence was that her bladder function deteriorated after left hip tendon repair surgery in 2017. Ms Whitington’s bladder dysfunction has subsequently been investigated and she has been provided with various treatments. These treatments have included Betmiga, a medication which is aimed at treating the ‘irritability’ of her bladder and controlling the frequency of urination.[29] Ms Whitington’s bladder symptoms have also been treated with Oxytrol patches.
[29] Report of Dr John Bolt dated 20 December 2021, page 53.
Dr Samantha Pillay has been Ms Whitington’s Urologist in respect of treatment for her bladder dysfunction since at least July 2018. Multiple correspondences authored by Dr Pillay were contained in the documentation provided to the Tribunal.[30]
[30] Document 44: Letters of Dr Samantha Pillay dated 31 January 2019; 28 October 2020; 27 October 2021; 28 October 2020; 21 November 2019; 25 July 2018; 6 April 2018.
Following an assessment of Ms Whitington on 25 July 2018 Dr Pillay forwarded correspondence to Ms Whitington’s General Practitioner Dr Von which stated:[31]
[31] Document 9: Letter of Dr Samantha Pillay dated 25 July 2018.
‘Sacral nerve neuromodulation could be considered but she says she requires further MRI for her back and hips.
Ultimately that may be something that we look at only in the future if she gets to the point where she has significant residuals or other symptoms. I have given her some information regarding sacral nerve neuromodulation. There may be in the future development of an MRI compatible device that may be available within the next couple of years. I will discuss this further when I review her in the rooms.’
46.In further correspondence to Dr Von on 1 August 2018 Dr Pillay stated:[32]
[32] Document 43: Letter of Dr Samantha Pillay dated 1 August 2018.
‘I discussed sacral nerve neuromodulation but Dianne feels there is need for further MRI and we do not have an MRI-compatible device. She said she may need further rhizolysis for her back.
Botox is likely to precipitate urinary retention.
I have discussed percutaneous tibial nerve stimulation and she is going to consider this treatment option.
I am reluctant to use anticholinergics because of her Sjogren’s.’
Dr John Bolt, Urologist also assessed Ms Whitington on 15 September 2020 and 12 October 2020. In his report dated 20 December 2021 Dr Bolt stated ‘I think the prognosis is that this lady will continue to have bladder dysfunction probably lifelong. She does have multiple medical and physical problems which I think are likely to compound the ongoing problems in her bladder and so I think her symptoms will persist but they are at a reasonable manageable level with the Betmiga tablets’.[33]
[33] Document 12: Report of Dr John Bolt dated 20 December 2021.
In his correspondence Dr Bolt also referred to the option ‘sacral nerve stimulation’ as a procedure for the treatment of Ms Whitington’s bladder dysfunction. Relevantly Dr Bolt stated:
‘Other treatments to improve bladder emptying are difficult and limited and she has been offered the treatment of sacral nerve stimulation but there were concerns that putting in this pacemaker device into her buttock region would make life difficult for having MRIs of her back.
Since the discussions with Dr Pillay about this in 2018 and 2019 there are now MRI compatible pacemaker devices for the bladder for electrical stimulation and it could still remain an option.’
Dr Pillay’s most recent correspondence in evidence was dated 27 October 2021.[34] In this correspondence Dr Pillay referred to Ms Whitington’s ‘problems with her back as well as an Achilles tendon rupture and other issues’. In respect of treatment for Ms Whitington’s bladder dysfunction Dr Pillay stated ‘We have previously discussed sacral nerve neuromodulation and now the MRI compatible devices are available, but at this stage, Dianne has other issues to sort out first’.
[34] Document 44: Letter of Dr Samantha Pillay dated 27 October 2021.
The Agency accepts that Ms Whitington’s treating practitioners consider the use of Endep or anticholinergic as not being an appropriate for Ms Whitington’s bladder dysfunction due to possible negative side effects.[35] The Agency submits however that Ms Whitington has multiple outstanding treatment recommendations available to her that she has not yet engaged with.[36] The outstanding treatments contended by the Agency are summarised as follows: [37]
[35] Document 42 at [44].
[36] Document 42 at [45].
[37] Document 42 at [45].
·Sacral nerve neuromodulation (‘SNN’);
·Tibial nerve stimulation (‘TNS’); and
·Botox.
The Agency also contends there is further evidence that, in any event, Ms Whitington is able to successfully utilise strategies to manage her incontinence including using continence aids and pads, and self-catheterising with varying success.[38]
[38] Document 42 at [46].
The Agency acknowledges that any recommended treatment should have the capacity of removing or curing Ms Whitington’s impairment consequent upon her bladder dysfunction, and that the availability of such treatment should be assessed against Ms Whitington’s individual circumstances and what she can ‘in reality’ access.[39]
[39] Document 42 at [48]; Davis at [139].
The Agency also acknowledges Dr Bolt’s opinion that Ms Whitington will probably experience lifelong bladder dysfunction however relies on Dr Bolt’s opinion that a combination of Betmiga tablets, the use of pads for incontinence and intermittent self-catheterisation will have the effect of ensuring that Ms Whitington’s persisting symptoms remain at a manageable level.[40]
[40] Document 42 at [49].
At the hearing Ms Whitington gave considerable evidence in respect of SNN and TNS as possible treatments for her bladder dysfunction. Ms Whitington’s position was that she refuses to have either procedure.
When questioned by the Tribunal as to whether she had received any recent advice from a medical practitioner confirming her unsuitability for either of these procedures, Ms Whitington stated that she had consulted Dr Pillay over a year ago and been advised that TNS was a ‘possibility’.[41] Ms Whitington also referred to two more recent consultations with Dr Pillay with an inference that Dr Pillay had suggested that these procedures would not be possible for her.
[41] Transcript, page 13 lines 14-28.
Ms Whitington also referred to ‘advice’ provided to her by Dr Hafner, Neurologist on 19 February 2024. Ms Whitington stated that she had consulted Dr Hafner by telephone and been informed that Dr Hafner ‘didn’t know a lot’ about TNS, but that Dr Hafner had subsequently done research and advised Ms Whitington in correspondence dated 19 February 2024 that a TNS procedure would be ineffective.[42] Ms Whitington did not however provide to the Tribunal a copy of Dr Hafner’s correspondence.
[42] Transcript, pages 14 and 15.
Ms Whitington’s oral evidence in seeking to explain and justify her refusal of SNN and TNS evasive and tangential. It did little to assist the Tribunal. Ms Whitington contended significant ‘negative consequences’ of SNN including ‘shocking jolting’ and doing ‘more harm than good’.[43] These contentions however were made in the absence of any supporting evidence from a relevantly qualified medical practitioner.
[43] Transcript, page 17 lines 16-17.
When asked to confirm whether the ‘negative consequences’ she referred to were on the basis of materials found by herself on the internet or expert evidence Ms Whitington confirmed ‘Yes, this is my own research’.[44]
[44] Transcript, page 16 lines 35-45; page 17 lines 9-11.
Ms Whitington stated that she was not interested in SNN and TNS on the basis of her own research and subsequent findings that these treatments would not be suitable, stating that she did not accept that these devices are compatible with an MRI machine. Upon being asked to confirm whether she had relied on any opinion of a registered medical doctor that she was unsuitable for these devices Ms Whitington became acrimonious stating that: ‘I am over you telling me I’m not disabled…I am not going to be told by someone that I should have a treatment’.[45]
[45] Transcript, 17 lines 39-43; page 19 lines 18-19.
Following the conclusion of the hearing Ms Whitington provided to the Tribunal a self-complied document entitled ‘Information re Sacral Neuromodulation’.[46] Included in this document was a reference to sacral neuromodulation involving the implant of an ‘Interstim System’ as a form of bladder control therapy. The document provided a link to a brochure produced by Medtronic that referred to ‘Important safety information in relation to the Interstim Therapy’.
[46] Email of the applicant dated 4 March 2024, attachment: ‘Information re Sacral Neuromodulation’.
This information included reference to a number of ‘side effects’ of this therapy with the statement: ‘This therapy is not for everyone. Please consult your doctor.’ The following statement is also made: ‘You should have a successful trial assessment before receiving InterStim™ Therapy. You cannot have diathermy (deep heat treatment from electromagnetic energy) if you have an InterStim device.’ Ms Whitington contended in her document that ‘in my case that would mean no Radiofrequency (RF)/microwave ablation, Ultrasound (at physio), any scanning equipment and other treatments or the surgical procedure rhizolysis for my lower back degenerative spine.’
I am of the view there is insufficient evidence in respect of Ms Whitington’s unsuitability for either treatment of SNN and TNS. Ms Whitington’s concerns regarding the need for ongoing MRIs in relation to back and hips was reasonable some years ago. Notwithstanding, her ongoing requirement for MRIs is no longer a barrier to SNN as there now exists MRI-compatible pacemaker devices for the bladder for electrical stimulation.
There is also insufficient evidence in respect of the likely expected outcomes of SNN and TNS and whether these procedures are likely to remedy the impairments Ms Whitington experiences as a result of her bladder dysfunction.
I am not persuaded by Ms Whitington’s evidence in relation to her suitability for these treatments and their likely outcomes on the basis that it was vague, self-serving and unverified. I am also not persuaded that the contents of the document entitled ‘Information re Sacral Neuromodulation’ satisfactorily rules out SNN for her as an appropriate treatment in the absence of an opinion from a suitably qualified medical practitioner familiar with her health issues and various medical conditions.
As such, I accept the Agency’s submission that there remain outstanding treatment options that have not yet been explored by Ms Whitington. Had these options been explored and suitable evidence provided the Tribunal would have been able to consider whether these treatments were ‘known, available and appropriate evidence based’ treatments that would be likely to remedy Ms Whitington’s impairments. In the absence of this evidence I am unable to be positively satisfied that there are no known, available and appropriate evidence-based treatments that would be likely to remedy the impairments Ms Whitington experiences as a consequence of her bladder dysfunction.
Subsection 24(1)(b) is not satisfied with respect to Ms Whitington’s bladder dysfunction.
Subsection 24(1)(d): Do Ms Whitington’s impairments affect her capacity for social or economic participation?
The Agency concedes and I am satisfied that Ms Whitington’s impairments affect her capacity for social and economic participation.[47]
[47] Document 42 at [105]-[106].
Subsection 24(1)(d) is satisfied.
Subsection 24(1)(c): Do Ms Whitington’s impairments result in a substantially reduced functional capacity for her to engage in activities of communication, social interaction, learning, mobility, self-care or self-management?
The Agency submits that only impairments that arise as a consequence of Ms Whitington’s DSD, PAMNS and AK should be considered by the Tribunal with regard to whether Ms Whitington’s functional capacity is substantially reduced for the purposes of subsection 24(1)(c) of the NDIS Act.[48] On the basis that I am not satisfied on the evidence that the impairment which arises as a consequence of Ms Whitington’s bladder dysfunction is permanent or likely to be permanent I consider this to be the correct approach.
[48] Document 42 at [53].
THE TRIBUNAL’S TASK
The Tribunal task in determining whether Ms Whitington’s functional capacity is ‘substantially’ reduced is twofold.[49]
[49] Document 42: [23]-[25].
The ‘first task’ is consideration of whether Ms Whitington’s circumstances are captured within the deeming effect of Rule 5.8 of the Access Rules. In circumstances where the deeming effect of Rule 5.8 is not enlivened the Tribunal must proceed to a ‘second task’. The second task requires that the Tribunal, on the evidence available determine whether Ms Whitington’s functional capacity for undertaking the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially’ reduced.
The first task: Whether Ms Whitington can rely on the deeming effect of Rule 5.8 NDIS Rules to establish that she has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(Tribunal emphasis)
Relevant to this application, Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Ms Whitington can participate ‘effectively or completely’ on the basis that she is unaided by assistive technology, equipment or home modifications other than ‘commonly used items.’
(Tribunal emphasis)
The term ‘effectively and completely’ is not defined in the NDIS Rules or the NDIS Act.
The question of what is meant by ‘effectively or completely’ was however addressed in the decision of National Disability Insurance Agency v Foster[50] (‘Foster’). Derrington J provided the following observation:
‘[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone. That would be an absurd construction.
……………
[88] Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, 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.’
[50] [2023] FCAFC 11.
In respect of Rule 5.8(a) of the Access Rules ‘assistive technology’, ‘equipment’ and ‘commonly used items’ are not defined in the Access Rules or the NDIS Act. An understanding of the meaning to be ascribed to these terms is however imperative to the issue of whether the deeming operation of Rule 5.8(a) of the Access Rules is enlivened. Relevantly in Mulligan v NDIA (‘Mulligan’) Mortimer J stated:[51]
‘...the text is clear that if an “impairment” results in an inability to participate in the “activity” without assistive technology or equipment, the person is deemed to have substantially reduced functional capacity to undertake that activity.’
[51] Mulligan at [54].
The number of items of assistive technology and equipment that are used by people with a disability is an ‘exhaustive list’.[52] Included as only a ‘part’ of that exhaustive list are those items that enable them to perform the activities referred to in Rule 5.8(b) of the Access rules. The only references to assistive technology and equipment are those contained in the Agency’s Assistive technology operational guidelines (‘the AT guidelines’).[53] The AT guidelines are issued to identify and select, from this ‘exhaustive list’, which items of assistive technology or equipment that will, and will not, be funded be funded under the scheme.
[52] Forbes and National Disability Insurance Agency [2023] AATA 2408 at [87].
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency. In Rooney the Tribunal identified the indicia in respect what are to be considered ‘commonly used items’ for the purpose of Rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation of installation;
·are relatively simple to use; and
·are relatively inexpensive.
Therefore, the Tribunal when considering the operation of Rule 5.8 is required to make an assessment ‘as a whole’ of the ‘degree’ to which Ms Whitington can participate in the numerous tasks and actions relevant to the particular activity referred to in subsection 24(1)(c) of the NDIS Act. This assessment of what Ms Whitington ‘can and cannot do’ and is avowedly functional and multi-faceted.[54] Furthermore, reliance upon the specific operation of Rule 5.8(a) requires consideration of whether the assistive technology or equipment upon which Ms Whitington relies are in fact ‘commonly used items’.
The second task: Whether in the absence of the deeming effect of Rule 5.8 of the Access Rules Ms Whitington has in any event a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) NDIS Act
The fact that Ms Whitington does not satisfy the requirements of Rule 5.8 does not however disqualify her from satisfying of subsection 24(1)(c) of the NDIS Act. If Ms Whitington’s circumstances do not fall within the deeming effect of Rule 5.8 she is still able to be considered as satisfying subsection 24(1)(c) of the NDIS Act. This is because the measure of whether Ms Whitington has a ‘substantially reduced functional capacity’ for one, or a number of activities in subsection 24(1)(c) is not exhaustively defined by Rule 5.8. In Mulligan Mortimer J held: [55]
‘As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas’.
[54] Mulligan at [55].
[55] Ibid at [77].
Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held: [56]
‘The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted’.
………….
‘...No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do’.
[56] Ibid at [55]-[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[57]
‘In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error’.
[57] Foster at [64]-[65].
Therefore on the basis that Ms Whitington’s circumstances do not enliven the deeming effect of Rule 5.8 of the Access Rules, in order to satisfy subsection 24(1)(c) of the NDIS Act the Tribunal must still undertake, with a high degree of precision, a functional, practical assessment of what Ms Whitington can and cannot do with respect to the activities in subsection 24(1)(c) of the NDIS Act.[58] This assessment requires consideration of the ‘bundle’ of tasks and actions that ‘form’ any given activity being considered.[59]
[58] Ibid [64].
[59] Ibid [65].
The Agency submits that an understanding of the use of the word ‘substantially’ is important and relevant to any assessment in respect of subsection 24(1)(c) of the NDIS Act. I accept this submission and consider that an ‘understanding’ of the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ is a necessary starting point of the Tribunal’s task in determining whether Ms Whitington satisfies subsection 24(1)(c) of the NDIS Act.
The principles of statutory interpretation and construction have long been established. In Project Blue Sky Inc v Australian Broadcasting Authority (‘Blue Sky’) the following principles were set out by the High Court: [60]
‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. . . The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole’.
[60] [1998] HCA 28; 194 CLR 355 at [69].
In Blue Sky their Honours also referred to Commissioner for Railways (NSW) v Agalianos[61] in which Dixon CJ stated that:
‘... the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’
[61] (1955) 92 CLR 390; [1955] HCA 27 at [397].
In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Constructions Commissions (The Bay Street Appeal) FCAFC 192 Allsop CJ made the following relevant observation:[62]
‘The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material: See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69]’
[62] At [3]
The intended purpose of the NDIS
On 31 July 2011 in response to a request to undertake an inquiry into a National Disability Long-term Care and Support Scheme, the Productivity Commission provided the Productivity Commission Inquiry Report (‘PCI Report’) titled Disability Care and Support, Report No 54.
The NDIS was modelled on the recommendations of the PCI Report. The PCI Report is therefore a highly relevant secondary material. It assists in the interpretation of the NDIS Act including its structure, also the purpose and objectives of the NDIS Act in the administration on the NDIS scheme.
The PCI Report proposed that the NDIS scheme would have three main functions. Associated with each function were three different populations of ‘customers’ who were described in terms of ‘tiers’.
The tier one included ‘every Australian’ on the basis that the NDIS scheme would provide to every Australian ‘insurance against the costs of support in the vent that they acquire a significant disability’[63] (the first function).
[63] PCI Report, page 158.
The tier two included ‘People with, or affected by, disability’ who could approach the Agency for ‘information and referral services (as distinct from individually tailored funding)’ (the second function).
The tier three was described as a ‘much smaller group’[64] of ‘People with disability for whom NDIS-funded, individualised supports would be appropriate’ [65] (the third function).
(Tribunal emphasis)
[64] PCI Report, page 12.
[65] PCI Report, page 159.
The estimated the population of the third tier was in the vicinity of $330,000.00 people and it was intended that the NDIS scheme would only fund supports for persons in tier three.
Persons in tier three were identified as ‘people with intellectual, physical, sensory, or psychiatric disabilities, who have significantly reduced functioning’. Persons in tier three were further identified as those who have ‘significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support’ [66]
[66] PCI Report, page 14.
The PCI Report stated:[67]
The National Disability Insurance Agency would apply this third criterion judiciously rather than routinely. It would be constrained by guidelines, and monitored rigorously for its effects on scheme costs. If the Agency were to use this criterion loosely, it could pose a risk to the overall financial sustainability of the scheme.
(Tribunal emphasis)
[67] PCI Report page 15.
Relevantly Recommendation 3.2 of the PCI Report stated:
Individuals receiving individually tailored, funded supports through the NDIS:
• should have a disability that is, or is likely to be, permanent, and
• would meet one of the following conditions:
– have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support
- be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective
The PCI Report identified that the scheme would not cover people:
• acquiring new catastrophic injuries, which would be covered by the NIIS as it developed (though people with injuries acquired before the establishment of the NIIS would be covered by the NDIS)
• with certain health conditions for which the publicly-funded healthcare system was best suited. For example, the care needs of people with terminal cancer would be best addressed in a palliative care setting. People with less severe musculoskeletal and psychological conditions would also typically receive assistance from the health system.
• people acquiring a disability after the age pension age
• people defined as having disabilities, but for whom the NDIS is not needed. For example, a person whose periodic back pain sometimes prevents them from picking up an object from the floor without assistance, and a person with asthma who could not communicate while having an attack are both defined as having a disability using current disability classification systems. (The latter would be defined as having a severe disability.) These people would not typically need (or want) funded support.
In considering the ‘Assessment criteria’ to be implemented with the NDIS scheme the Productivity Commission referred to the International Classification of Functioning (ICF) — the World Health Organisation’s (WHO) framework for measuring health and disability at both individual and population levels. This framework listed nine ‘activities and participation’ domains of relevance as follows:[68]
[68] PCI Report, pages 309-310.
• communication — communicating by language, signs and symbols, carrying on conversations, and using communication devices and techniques
• mobility — walking, running or climbing, changing location or body position, carrying, moving or manipulating objects, and using various forms of transportation
• self-care — attending to one’s hygiene, dressing, eating and looking after one’s health
• domestic life — carrying out everyday tasks such as acquiring necessities (like a place to live and goods and services), preparing meals, caring for household objects and assisting others
• interpersonal interactions and relationships — relating with strangers, formal and informal social relationships, family and intimate relationships
• learning and applying knowledge — learning, applying the knowledge that is learned, thinking, solving problems, and making decisions
• community, social and civic life — engaging in community, civil and recreational activities
• general tasks and demands — carrying out single or multiple tasks, organising routines and handling stress
• major life areas — carrying out responsibilities at home, work or school and conducting economic transactions.
In addition to identifying the cohort to whom NDIS scheme would apply the PCI Report emphasised the importance that the NDIS was not to respond to the shortfalls ‘in mainstream services by providing its own substitute services’. The PCI Report stated:[69]
To do so would weaken the incentives by governments to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ‘silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services. If governments and departments thought that the NDIS would address both specialist and mainstream service needs, people with a disability may well be seen as a lesser priority for the generic services provided by government.
[69] PCI Report, page 238.
The objects and principles of the NDIS Act
In July 2013 and following on from the PCI Report the NDIS Act came into effect.
Subsection 3(1) provides the objects of the NDIS Act. These objects are subject to a caveat contained in subsection 3(3) which provides that in giving effect to the objects of the NDIS Act regard is to be had to ensuring:
·the financial sustainability of the NDIS scheme;
·the provision of services by other agencies, Departments or organisations; and
·the need for interaction between the provision of mainstream services and the provision of supports under the scheme.
Section 4 of the NDIS Act provides the general principles guiding the actions of the Agency under the NDIS Act in administering the NDIS scheme. Included as a guiding action is subsection 4(4) which states as follows:
People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to co-ordinate these supports with the supports provided under the National Disability Insurance Scheme’.
To become a ‘participant’ in the NDIS scheme a person must meet the ‘access criteria’. Chapter 3 of the NDIS Act provides for when a person becomes a ‘participant’ in the NDIS scheme. The requirements are three-fold. A person must meet both the age[70] and residence[71] requirements. The third requirement is the satisfaction of either the ‘disability requirements’[72] or the ‘early intervention requirements’.[73]
[70] Section 22, NDIS Act.
[71] Section 23, NDIS Act.
[72] Section 24, NDIS Act.
[73] Section 25, NDIS Act.
Relevant to this review are the ‘disability requirements’ which are set out in paragraph [12] of this decision. In respect of section 24 of the NDIS Act the Explanatory Memorandum[74] provides as follows:
Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS Launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.
[74] Document 39: T Documents, T26.
The relevance of the Access Rules
By operation of section 209 of the NDIS Act, the Minister through the legislature may make rules prescribing matters to modify and prescribe the operation of the NDIS Act. In an application for access to the NDIS scheme the relevant rules, as prescribed by section 27 of the NDIS Act are the ‘Access Rules’ which are referred to in paragraphs [27] and [72] of this decision.
Particularly relevant in this review is the deeming effect of Rule 5.8[75] and the ability of the legislature to mandatorily include certain persons into the ‘category’ of persons with a ‘substantially’ reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act.[76]
[75] Reason for decision at [72]-[80]
[76] Respondents contention para 24
The relevance of the Access Guidelines
As referred to at [17] above the Agency of itself publishes, at regular intervals, Access Guidelines. The Agency correctly submits that the Access Guidelines:
‘…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 s24(1)(c) of the NDIS Act’.
Notwithstanding, the Access Guidelines are in fact based on the NDIS Act and the Access Rules which a purpose of providing operational information which explains what the Agency needs to consider in the exercise of its function and how it makes its decisions.
The threshold requirement for subsection 24(1)(c) of the NDIS Act
The term ‘substantially’ in the context of ‘reduced functional capacity’ carries a ‘high threshold’. I am satisfied that this is the correct interpretation and my considerations are as follows:
·The recommendation of the Productivity Commission was that the NDIS scheme provide supports only to a subcategory of persons within a much larger category of the persons who have a disability;[77]
·The Productivity Commission also recommended that the NDIS scheme provide these supports ‘judiciously rather than routinely’. This is logical and central to the operation of the NDIS scheme and ensuring its financial sustainability;
·The NDIS scheme was never intended to provide support to ‘every person with a disability’;
·Rather, as part of one of its function the NDIS scheme was intended to support persons with disability to receive supports outside of the NDIS scheme through mainstream services. This would of course include persons with a disability who do not fall within the sub-category of persons for whom the NDIS scheme was intended;
·The NDIS scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant state and territory governments;
·The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribes Rules in relation to access to the NDIS scheme. By way of example Rule 5.8 of the Access Rules operates to categorise certain persons ‘into’ the category of persons with a ‘substantially’ reduced functional capacity; and
·The concept of prescribing Rules in relation to a category of certain persons who would be mandatorily ‘excluded’ from the category of persons with a ‘substantially’ reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision maker with an informed approach by way of practical examples and circumstances in will access will not be granted.
[77] Mulligan at [50].
I am satisfied that the Tribunal’s satisfaction of what constitutes ‘substantially’ reduced functional capacity for an applicant seeking access to the NDIS scheme requires a high threshold. My assessment of Ms Whitington’s functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act will therefore be made on that basis.
Can Ms Whitington rely on the deeming effect of Rule 5.8 of the NDIS Rules to satisfy that she has a substantially reduced functional capacity in relation to the activities in subsection 24(1)(c) of the NDIS Act?
The Tribunal’s task in considering the likely deeming effect of Rule 5.8(a) of the NDIS Rules requires identification of whether items that Ms Whitington uses to participate in any of the activities in subsection 24(1)(c) of the NDIS Act are ‘commonly used items’.
The evidence is that Ms Whitington she uses a shower stool, a walking frame, three rollator walkers kept at various locations in her home and car, a toilet seat raiser, a three-point walking, a regular walking stick and a pick-up stick.[78]
[78] Document 23: Report of Dr Hall dated 22 March 2023; Transcript, page 27 line 37 to page 28 line 34.
None of the items used by Ms Whitington require any ‘particular customisation or prescription’.[79] All of the items are relatively simple to use. All items are easily purchased without referral from a medical practitioner, physiotherapist or other allied health professional.[80] They are all relatively inexpensive and able to be obtained commercially.[81]
[79] Galea and National Disability Insurance Agency [2022] AATA 2263 at [91].
[80] Coventry and National Disability Insurance Agency [2024] AATA 259 at [107].
[81] Power and National Disability Insurance Agency [2023] AATA 3357 at [47] and [71].
Having regard to the indicia in Rooney I am satisfied that a shower chair, a walking frame, a rollator walker, a toilet seat raiser, a walking stick and a pick-up stick are ‘commonly used items’ for the purposes of Rule 5.8(a) of the NDIS rules.
I refer also to the Tribunal’s decision of Coventry and National Disability Insurance Agency and the consideration of Deputy President Mischin that the Applicant’s reliance upon his walking stick did not ‘deem’ him to have a substantially reduced functional capacity with respect to mobility.[82]
[82] Coventry and National Disability Insurance Agency [2024] AATA 259 at [71].
Relevant to this decision is also Power and National Disability Insurance Agency, where the Tribunal considered a walking stick a commonly used item,[83] as was a four-wheeled walker which is able to be purchased without referral from a physiotherapist and can be obtained either commercially or through a state subsidy scheme.[84]
[83] [2023] AATA 3357 at [71].
[84] Ibid at [47].
Likewise in the Tribunal’s decision of Galea and National Disability Insurance Agency, a walking stick was considered a commonly used item which was easily accessible and did not require any ‘particular customisation or prescription’.[85]
[85] Galea and National Disability Insurance Agency [2022] AATA 2263 at [91].
Ms Whitington’s evidence referred to her difficulties in mobilising, socialising and attending to her self-care[86] such that she required the use of the items referred to in paragraph [113] above in order to assist her with these activities. No evidence however was proposed that she usually required physical assistance, guidance, supervision or prompting from other people to undertake the activities in subsection 24(1)(c) of the NDIS Act. I therefore am also satisfied that Ms Whitington is not assisted by the deeming operation of either 5.8(b) or 5.8(c) of the NDIS Rules to establish a substantially reduced functional capacity.
Does Ms Whitington have a substantially reduced functional capacity in relation to the activities in subsection 24(1)(c) of the NDIS Act?
[86] Transcript, pages 29 – 30.
On the basis that the deeming operation of Rule 5.8 is not enlivened I am thereafter required to consider whether Ms Whitington has a substantially functional capacity in relation the activities at subsection 24(1)(c) of the NDIS Act.[87]
[87] Mulligan at [19].
At the commencement of the hearing Ms Whitington conceded that she did not have a substantially reduced functional capacity in relation to her communication, learning and self-management.[88] Throughout the hearing however evidence in relation to these activities was provided to the Tribunal. On this basis and notwithstanding Ms Whitington’s concessions I will consider each of the activities in subsection 24(1)(c) of the NDIS Act in the context of Ms Whitington’s functional capacity.
[88] Transcript, page 6 line 15 - page 7 line 19.
The consideration of Ms Whitington’s functional capacity relates specifically her ‘daily life activities’. Relevantly the current Access Guidelines states as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
To meet the disability requirements, we must have evidence of all of the following:
• You have a disability caused by an impairment.
• Your impairment is likely to be permanent.
• Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
(Tribunal emphasis)
In my view, for reasons already stated,[89] my consideration and assessment of whether Ms Whitington’s functional capacity is substantially reduced for the purposes of subsection 24(1)(c) of the NDIS Act in respect of daily life activities carries a high threshold.
[89] Reasons for Decision at [110]-[111].
Communication
The Access Guidelines describe communication as follows:
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.
In Madelaine v National Disability Insurance Agency (‘Madelaine’) the Tribunal considered ‘communication functionally’ in respect of an earlier (and not dissimilar) version of the Agency’s Operational Guidelines.[90] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on’.
[90] [2020] AATA 4025 at [79].
The Agency submits that Ms Whitington’s impairments do not result in a substantial reduction in Ms Whitington’s functional capacity in the activity of communication.
Ms Alicja Ploszaj, Occupational Therapist conducted a functional capacity assessment of Ms Whitington in April 2023 at the request of the Agency. She provided a report dated 11 May 2023 and also gave oral evidence at the hearing.
In Ms Ploszaj’s report she described Ms Whitington responding to ‘questions thoughtfully, respectfully and appropriately following conventional conversation patterns’. Ms Ploszaj stated that she held no concerns in respect of Ms Whitington’s ability to communicate at the time of the assessment and that ‘Ms Whitington has intact and functional communication skills’.[91]
[91] Document 41: Report of Ms Alicja Ploszaj dated 11 May 2023 at [37].
In her oral evidence Ms Ploszaj confirmed her opinion in relation to Ms Whitington’s ability to engage in the activity of communication.
In June 2023 Ms Whitington, dissatisfied with the findings of Ms Ploszaj, referred herself to Ms Ella Reddy, Occupational Therapist for assessment. Ms Reddy provided a report in respect of Ms Whitington’s functional capacity dated 16 July 2023. In her report Ms Reddy described Ms Whitington as having the ability to verbally communicate her needs clearly and articulately.[92]
[92] Document 29: Report of Ms Ella Reddy dated 16 July 2023 page 5.
During the hearing, Ms Whitington demonstrated that she is capable of speaking clearly and without assistance or prompting. She was able to cross-examine Ms Plozjak in respect of matters relevant to her application and at the conclusion of the hearing prepare and provide detailed submissions to the Tribunal.
During her evidence also Ms Whitington spoke of recent and regular appointments with medical practitioners seeking treatment and advice in respect of her various health conditions. I formed the view that she is easily able to communicate her health concerns to relevant medical practitioners and allied health professionals.
Ms Whitington’s evidence also included reference to regular telephone conversations with her son and other friends. Evidence was also given of using social media on a daily basis to liaise with family and friends.[93] Also of weekly social activities with friends and family with Ms Whitington stating, ‘I try and organise at least one social catch up per week.’[94] Ms Whitington meet friends for coffee or a meal following rehabilitation classes at a local swimming pool generally twice a week.[95]
[93] Document 19: Applicant’s Statement of Lived Experience, page 8.
[94] Transcript, page 38 lines 19-20.
[95] Transcript, page 37 lines 14-18.
Having considered the evidence and in light of my observation of Ms Whitington throughout the hearing I am satisfied that Ms Whitington’s permanent impairments do not result in her having a substantially reduced functional capacity in relation to the activity of communication.
Ms Whitington is able to communicate effectively and regularly with others and enjoys doing so. As such, I am satisfied that Ms Whitington does not have a substantially reduced functional capacity to undertake the activity of communication as a consequence of any or all of her permanent impairments.
Social Interaction
The Access Guidelines refers to ‘socialising’ as follows:
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.
Relevantly, in Madelaine the Tribunal held ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[96]
[96] Madelaine at [87].
In Kilgallin and National Disability Insurance Agency the Tribunal observed the following in relation to the threshold requirements for ‘social interaction’: [97]
‘Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.'
[97] [2017] AATA 186 at [18].
Ms Whitington contended that she has a substantially reduced functional capacity in respect of the activity of social interaction.[98] In support of this contention she referred to her fatigue and her pain levels due to her conditions and also to her difficulties managing aspects of the external community environment due to her mobility.[99] She referred to difficulties managing steps and carparks. By way of a specific example she gave evidence of not attending the Adelaide Fringe Festival of Arts in recent years due to the difficulties of walking between events and remaining upright for any period of time.[100]
[98] Transcript page 6 lines 40-43.
[99] Document 19, pages 5, 7 and 8.
[100] Transcript, page 25 lined 27-29.
Ms Whitington’s evidence in support of her contention of having a substantially reduced functional capacity for social interaction is misguided. Ms Whitington’s difficulties in respect of her socialisation relate to her mobility and not her ability to socialise.
This view is supported by the opinion of Ms Reddy who described Ms Whitington as having ‘an active social life and generally presents with a positive life outlook‘,[101] often seeing her adult sons and their families.
[101] Document 29, page 5.
Further, by the evidence of Ms Ploszaj who stated that during her assessment Ms Whitington ‘described a healthy social life with many friends and social groups’,[102] referring to meeting frequently with friends for coffee, dinners and social outings including exercise groups.
[102] Document 41, page 5.
In her oral evidence Ms Whitington referred to seeing a friend each weekend and organising at least one social outing each week. She talks to several people a couple of times a day on the phone and uses ‘a lot’ of social media to interact with friends. She checks in with an elderly friend at least once every day and also meets with friends at a swimming pool and local shopping centre each week for coffee.[103]
[103] Transcript page 38 lines 18-20; 40-44.
Having considered the evidence I am satisfied that Ms Whitington does not meet the threshold of having a substantially reduced functional capacity to undertake the activity of social interaction as a consequence of her permanent impairments. Whilst Ms Whitington’s physical impairments affect the nature of her ability to socialise in certain external environments and attend certain community events, having regard to the threshold, Ms Whittington is more than adequately able to engage in social interaction with friends and family. She does so on a regular basis, enjoys this aspect of her life and is in fact proactive in respect of this activity.[104]
[104] Transcript, page 38 lines 18-20.
I am satisfied that Ms Whitington does not have a substantially reduced functional capacity to undertake the activity of social interaction as a consequence of any or all of her permanent impairments.
Learning
The Access Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
In Madelaine the Tribunal described the reference in the Guidelines to learning as follows:[105]
‘What the Guideline foreshadows is having the cognitive capacity to absorb and apply new skills. The phrase practising and using new skills should not be interpreted as meaning that any inability to utilise a skill connotes an inability to learn.’
[105] At [93].
Ms Ploszaj observed no learning issues during her assessment.[106] In respect of assessment she stated:
‘Ms Whitington’s scoring indicates that she experiences nil difficulties analysing and finding solutions to problems in day-to-day life, remembering to do important things and learning and new task. Furthermore, Ms Whitington experiences nil difficulty concentrating on a task for ten minutes.’
[106] Document 41 at 28.7.
Ms Reddy provides a conclusion in her report however that Ms Whitington’s functional capacity is substantially reduced in the area of learning, stating that Ms Whitington is unable to undertake tasks in the activity of learning without support. Ms Reddy does not provide any basis for this conclusion including to what kinds of support she refers to nor does she mention any relevant consideration in the summary to her report. In the absence of any adequately reasoning for this finding I am not persuaded by her opinion.
Ms Whitington gave evidence of having four degrees and two postgraduate degrees.[107] She emphasised her post-graduate degree in research, considering that she was ‘well versed’ in the research of public health documents and medical documents. She stated that she had studied ‘with a lot of doctors’ and further spent ten years on the road as an ambulance officer and that she had ‘a considerable medical knowledge’.
[107] Transcript, page 17 line 1 and page 20 lines 22-26; Document 29 at [2].
She also referred to having done extensive research in relation to various treatments and in fact produced as evidence to the Tribunal her own research findings in relation to sacral neuromodulation.[108] In regard to her ‘own research’ conducted in regard to the efficacy of medical treatment devices she stated: ‘I have four degrees. I am not an idiot’.[109]
[108] Transcript page 16 line 43 – page 17 line 7; Email of the applicant dated 4 March 2024; attachment: ‘Information re Sacral Neuromodulation’.
[109] Transcript, page 16 lines 35-45; page 17 lines 9-11.
Having considered the evidence I am satisfied that Ms Whitington does not meet the threshold of having a substantially reduced functional capacity to undertake the activity of learning as a consequence of any or all of her permanent impairments.
Mobility
The Access Guidelines describe mobility as follows:
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.
In Madelaine, the Tribunal held (albeit in respect of an earlier version of the NDIS Operational Guidelines) that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’, stating that:[110]
‘A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.
The use of the phrase move around...to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.’
(Tribunal emphasis)
[110] At [104]-[105].
Ms Whitington contends that she has a substantially reduced functional capacity in relation to her mobility.[111] Ms Whitington evidence is that she experiences significant pain and fatigue when mobilising. She struggles with the task of standing and has numbness in her limbs as a consequence of neuropathy which is a symptom of her PASMN.[112]
[111] Transcript, page 7 lines 10-14.
[112] Transcript, page 69 lines 40-41.
In addition to the use of a walking stick and a walker Ms Whitington provided the following examples of strategies she employs to manage her difficulties in mobilisation:
·the use of a supermarket trolley for stability and support when shopping;[113]
·the use of furniture and walls to stabilise when moving around her home;[114]
·the requirement for a toilet seat raiser with handles;[115]
·sometimes sitting down while dressing;[116]
·use of long-handled sponges, hairbrushes and combs;[117]
·planning what clothes she will wear because she is unable to dress in a hurry;[118]
·wearing ‘stretchy’ clothing for ease of dressing;[119] and
·taking breaks while undertaking tasks such as washing dishes and preparing meals.[120]
[113] Transcript, page 26 lines 14-18.
[114] Transcript, page 26 line 41.
[115] Transcript, page 27 lines 6-8.
[116] Transcript, page 30 lines 30-31.
[117] Transcript, page 31 lines 6-11.
[118] Transcript, page 30 lines 25-26.
[119] Transcript, page 30 lines 41-46.
[120] Transcript, page 5 lines 7-13.
Ms Whitington also described difficulties in accessing her house using the seven stairs through the carport or the back door, which has five. Instead she will use the front entrance which has two steps and a ramp.[121] Ms Whitington explained in oral evidence that currently she has no handrails near her front door and in her shower but that she is currently having renovations done to her home and proposes to have handrails fitted in various locations around her home.[122]
[121] Transcript, page 29 lines 19-28; document 19, page 7.
[122] Transcript, page 27 lines 14-17; page 29 lines 10-12.
Ms Ploszaj’s assessment of Ms Whitington identified ‘mild difficulties with standing up from sitting down and moving around inside the home environment and mild difficulties with standing for long periods, getting out of the home, and walking long distances.’[123]
[123] Document 41 at [11].
Ms Whitington reported to Ms Ploszaj that she was independent with indoor mobility and that in respect of outdoor mobility she preferred to walk short distances to minimise pain. Ms Whitington also advised that whilst she had a wheelchair, she did not use it very often ‘due to logistics’.[124]
[124] Document 41 at [9].
Ms Ploszaj’s assessment and observations of Ms Whitington referred to her ability to:
·walk around her home independently (albeit with a limp);
·stand with weight bearing between both feet for periods of between five and ten minutes;
·use stairs, ascending and descending, with the support of either a handrail, walking stick or wall;
·use a walking stick, walls, counter tops and furniture for support to mobilise around her house;
·use a three-point walking stick to mobilise when outdoors;
·sit at a dining room chair for one and a half hours;
·twist, bend and reach, but with caution on account of pain behaviours; and
·Independently transfer to and from her bed, recliner, toilet and shower using compensatory/modified strategies and, in the context of pain levels, the requirements for extra time.
In respect of these activities Ms Ploszaj noted that in many instances Ms Whitington exercised caution in the context of pain and required extra time to complete movements. Ms Ploszaj stated that Ms Whitington reported being able to walk 100-200 metres with her three-point walking stick outdoors or five to ten minutes before requiring a rest.[125]
[125] Document 41 at [11].
Ms Reddy reported Ms Whitington as having impaired mobility as a result of her DSD, PAMNS and AK. Ms Reddy referred to Ms Whitington’s impaired balance during dynamic movements, reduced range of movement bilaterally of her upper limbs also her neck and reliance on a three-point walking stick and a wheeled walker for mobilising in the community. She also referred to reliance also on the use of furniture, walls and doorframes when mobilising inside her home.
Ms Reddy also described Ms Whitington’s difficulties with transfers off low surfaces on and off low surfaces including a toilet, lounge chair, bed and car seat and the use of assistive technologies with these movements. Ms Reddy recommendations included a ‘bed stick’ and an electronically adjustable bed to assist Ms Whitington with her bed transfers.
I have considered extensive evidence, both documentary and oral, in relation to Ms Whitington’s difficulties undertaking the activity of mobility. I am not persuaded that Ms Whitington’s functional capacity to mobilise is reduced to the extent of the threshold required. My considerations are as follows:
·Ms Whitington is able to drive a motor vehicle which includes the ability to transfer in and out of a motor vehicle. She estimates that she probably drives four to five times a week.[126] She reported to Ms Ploszaj as being able to drive up to one hour, and able to undertake longer journeys with frequent rest breaks;
[126] Document 19 at [5].
·She drives herself independently to weekly medical and allied health appointments, engagements with friends and also to hydrotherapy classes at a local swimming pool;
·She is able to mobilise from her home to her carport in order access her motor vehicle with the assistance of her walker;[127]
·She is able to mobilise around a supermarket twice a week using a trolley for support;
·She is able to mobilise to her letterbox with the assistance of her walker and the external walls of her house;[128]
·She is able to mobilise in her kitchen in order to prepare and cook meals and wash dishes with the support of a walker that has included in it a seat;
·She is able to mobilise herself using her walker to access her bathroom to toilet and shower which includes washing her hair. She can also dress herself;[129]
·She can use a computer and with a detached mouse;[130]
·She can hang her clothes on a portable clothesline situate inside her home;[131]
·She is able to remake her bed sheets;
·She is able to manage independently with transfers in and out of chair by using the arms of the arm to ‘push off’;[132] and
·In 2023 she flew from Adelaide to Canberra and then subsequently undertook the return journey by driving a motor vehicle from Canberra to Adelaide, which was an approximate 13-hour drive broken by multiple stops.
[127] Document 19 at [4].
[128] Document 19 at [4].
[129] Document 19 at [18].
[130] Document 19 [9].
[131] Document at [19].
[132] Document [19].
I have taken into account the activities that Ms Whitington can and cannot do, including the degree to which she can undertake movement activities. I acknowledge that Ms Whitington’s ability to mobilise is slower as a consequence of her permanent impairments; however, with the use of commonly used items and reasonable modification strategies she is able to mobilise to the extent beyond that which is contemplated by the scheme.
I accept the Agency’s contention that Ms Whitington does not reach the requisite threshold under subsection 24(1)(c) of the NDIS Act in respect of the activity of mobility.
Having considered the evidence I am satisfied that Ms Whitington does not meet the threshold of having a substantially reduced functional capacity to mobilise as a consequence of any or all of her permanent impairments.
Self-care
The Access Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Ms Whitington will only have a substantially reduced function capacity in the activity of self-care where there are ‘significant gaps’ in her capacity to maintain her personal health, safety and well-being. As the Tribunal explained in Madelaine in respect of the activity of self-care:[133]
‘Extrapolating from this provision, it may be said that having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.’
[133] Madelaine at [121].
Ms Whitington is able to toilet and shower herself. Shis able to dress herself and prepare meals for herself. She can make and attend medical and allied health appointments. In her statement of lived experience she stated ‘No I don’t require assistance to complete your self-care needs (showering, going to the toilet, eating and drinking, dressing yourself etc)? I’ve modified my movements’.[134]
[134] Document 19 at [18].
Ms Whitington’s evidence is that she is able to independently manage her medications and does not require any assistance including with her weekly injections.[135] She refers to the use of commonly used items and adaptive strategies which assist her with self-care activities including sitting down to start dressing and leaning forward to wash her hair.[136]
[135] Document 19 at [20].
[136] Document 19 at [19].
Ms Ploszaj reported that Ms Whitington is independent with toileting and grooming and can ‘complete sedentary activities such as feeding, grooming and other tasks without restriction’[137]
[137] Document 41 at [29].
In respect of a WHODAS assessment Ms Ploszaj stated, ‘Ms Whitington’s scoring indicates moderate difficulties with the tasks of washing her whole body, dressing, and staying by herself, and no difficulty feeding herself’.[138]
[138] Document 41 at 11.2.
Ms Ploszaj also stated that ‘Ms Whitington is independent with self-care activities, however, is affected in the completion of her self-care tasks through decreased speed, pain, energy management and equipment requirements. She is however capable of completing the tasks with grading and pacing strategies.’[139]
[139] Document 41 at [26].
Ms Reddy reports refer to Ms Whitington’s difficulties in showering and her required use of a shower chair, handheld shower hose and long-handled sponge aids. For grooming she uses a long-handled brush and comb. I consider these items to be all ‘commonly used items’. She considered Ms Whitington was able to eat, drink and manage medications independently. She is able also to toilet independently with the use of a ‘toilet seat raiser’.[140]
[140] Document 29 at [7].
The Agency contends that despite Ms Whitington having some difficulty with self-care tasks, as a whole Ms Whitington can complete domestic tasks in a modified manner and with the support of assistive technology. In Foster it was noted ‘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.’[141]
[141] At [88].
Relevantly the Access Guidelines state:[142]
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
(Tribunal emphasis)
[142] At 8.3.1.
Based on the evidence I am not satisfied that Ms Whitington does not have significant gaps in her capacity to complete tasks within the activity of self-care.
Having considered the evidence I am satisfied that Ms Whitington does not meet the threshold of having a substantially reduced functional capacity to undertake the activity of self-care as a consequence of any or all of her permanent impairments
Self-management
The Operational Guidelines describe self-management as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today 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.
In her oral evidence in relation to her capacity for self-management, Ms Whitington stated ‘Self-management, I’m fine at the moment.’[143]
[143] Transcript, page 7 line 29.
In respect of Ms Whitington’s ability to self-manage I refer to the following:
·Ms Whitington is able to make and attend medical and allied health appointments;
·She is able to drive herself to these appointments and attend remotely via telehealth;
·She utilities online shopping to purchase groceries, clothing and other daily necessities for herself;[144]
·She is able to make decisions in relation to finances, budgeting and managing bills and in fact manages several bank accounts;[145]
·With some modifications around her home she is able to take her rubbish and bins out and perform light mopping and vacuuming tasks;[146]
·Ms Ploszaj reports that Ms Whitington experiences some reduction in her self-management capacity and undertakes relevant tasks more slowly and with less motivation although nonetheless is independently able to manage her affairs, decision-making and appointments;[147]
·Ms Reddy reports that Ms Whitington is able to engage in all tasks of self-management independently including scheduling appointments, managing finances and managing health and disability needs.[148]
[144] Document 19 at [11].
[145] Document 19 at [16].
[146] Document 19 at [13]-[14].
[147] Document 41 at [41]-[44].
[148] Document 29 at [12].
Having considered the evidence I am satisfied that Ms Whitington does not meet the threshold of having a substantially reduced functional capacity to undertake the activity of self-care as a consequence of any or all of her permanent impairments.
Subsection 24(1)(e): Is Ms Whitington likely to require support under the National Disability Insurance Scheme for her lifetime?
On the basis that Ms Whitington has failed to meet subsection 24(1)(c) of the NDIS Act I am not required to consider the remaining criterion under subsection 24(1)(e) of the NDIS Act. Notwithstanding I make the following observations.
The correct approach in relation to whether Ms Whitington is likely to require support under the National Disability Insurance Scheme for her lifetime was recently considered in Foster with the following observation:[149]
‘The focus of s24(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.’
[149] At [93].
During her assessment by Ms Ploszaj, Ms Whitington identified the following goals in respect of the supports she seeks:[150]
·I would like to stay in my own home safely
·I would like to have my steps assessed by an OT for rails to minimise risk of falls
·I would like to have access to allied health services such as physiotherapy, hydrotherapy, exercise physiology and occupational therapy
·I would like to safely engage in the community by having an OT driver assessment to provide me with driving equipment to improve safety
·I would like assistance with indoor and outdoor domestic tasks
·I would like assistance with bulk cooking to freeze meals I can defrost independently
·I would like to take a holiday to WA or QLD
[150] Document 41 at [16].
The Agency correctly identifies that many of these supports are more appropriately funded through other programs. On the basis that Ms Whitington is 67 years of age the Agency relevantly identifies supports that may be available to Ms Whitington through Government ‘My Aged Care’ support. This service includes access to a Commonwealth Home Support Programme and a Home Care Package.[151]
[151] Document 42 at [118].
Ms Whitington’s oral evidence was that she had not applied for My Aged Care support and that she would not be interested in doing so.[152] This approach by Ms Whitington is unfortunate and detrimental to her own interests.
[152] Transcript, page 81 line 19.
Section 25 – The Early Intervention Requirements
I am satisfied that Ms Whitington’s impairments as a consequence of her DSD, AS and PASMN are permanent for the purposes of subsection 25(1)(a)(i) of the NDIS Act.
In her oral evidence Ms Whitington stated that she received her diagnosis of DSD and AS is her early 30s. Her symptoms in respect of PASMN commenced on or about 2015 with a diagnosis confirmed in 2020. As such Ms Whitington’s impairments in my view are long-standing.
The Agency contends that the remainder of the early intervention requirements are not met because the evidence does not demonstrate that the provision of early intervention supports would likely have a significant impact on the course of the Ms Whitington’s impairments or have any of the benefits identified in subsection 25(1)(c)(i)-(iv).[153]
[153] Document 42: Respondent's Statement of Facts, Issues and Contentions at [116].
The Agency accepts that the evidence before the Tribunal suggests that the supports sought might assist Ms Whitington to conserve energy, reduce physical exertion, maintain her strength and mitigate the risk of falls. In this regard reference is made to supports which include physiotherapy, hydrotherapy, occupational intervention, podiatrist, dietitian intervention, low-cost aids or modifications, and assistance with community access, heavy domestic duties, gardening and household maintenance.
The Agency submits and I accept that there is however no evidence before the Tribunal that suggests that the supports sought by Ms Whitington are early intervention in nature and are likely to reduce her future support needs.
On this basis I am not satisfied that that the provision of early intervention supports for Ms Whitington is likely to reduce her future needs for support for the purposes of subsection 25(1)(b) of the NDIS Act. Having failed to meet this mandatory criteria Ms Whitington cannot meet the early intervention requirements.
Conclusion
Ms Whitington does not satisfy either the disability requirements or the early intervention requirements.
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
I certify that the preceding 196 (one hundred and ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins
……………………[SGD]…………………..
2 April 2024
Associate
Dates of Hearing: 29 February and 1 March 2024
Representative for the Applicant: Ms Dianne Whitington
(Self-represented)
Representatives for the Respondent: Ms Josephine Batiste
(Counsel)
Mr Christopher Duluk
(Solicitor, HWL Ebsworth Lawyers)
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